COMMISSIONER: Debgar Holdings Pty Ltd (the Applicant) has appealed the decision of Wagga Wagga City Council (the Respondent) to refuse its development application (DA17/0211) for conversion of an existing dwelling, often referred to as 'Millies Guesthouse', to a transitional group house, to be known as the Riverina Rehabilitation House (RRH), at Lots 23 and 24 in DP 29756, also known as 199 Gurwood Sreet, Wagga Wagga (the Subject Site).
The development will result in a building comprising:
1. 13 bedrooms (12 guest rooms and 1 carer room);
2. bathrooms, including ensuites and shared facilities;
3. a communal kitchen;
4. a laundry;
5. communal living area and dining area;
6. therapy rooms;
7. an office;
8. two on-site car parking spaces.
The Subject Site is located at the corner of Gurwood and Gossett Streets, Wagga Wagga, and is zoned R1 General Residential under Wagga Wagga Local Environment Plan 2010 (WWLEP).
The appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is heard under s 34(c) of the Land and Environment Court Act 1979.
The Court had previously convened a conciliation conference with the Parties on 1 May 2018, which was then adjourned on several occasions, before being terminated on 26 June 2018.
On 30 July 2018, the Applicant was granted leave by the Court to rely on amended plans, including an amended draft Management Plan, for the proposed development.
At the commencement of the hearing, an on-site view was undertaken, during which the following individuals made submissions to the Court in relation to the appeal:
1. Ms Sally Longmore, a resident of Gurwood Street, Wagga Wagga, who provided a written submission, and who said that her concerns included:
1. the suitability of the of the Subject Site for the proposed development;
2. whether the transitional group home is in keeping with the objectives of the Subject Site's R1 land use zoning;
3. whether the proposed development was in keeping with the amenity of the locality;
4. the safety and well-being of local residents, including children;
5. the degree to which the proposed development would be regulated, and whether 'proposed safeguards' could be legally enforced;
6. the potential for the proposed development to give rise to noise impacts as clients undertake outdoor activities;
7. the sufficiency of parking for the proposed development;
8. lifestyle impacts related to the movement of family members, including children, through the area;
9. the potential for the proposed development to impact on local land values;
10. whether the proposed development represented best practice for addressing drug and alcohol rehabilitation requirements in the community, and its long term viability;
11. the length of time that clients of the facility would be required to be abstinent of any addictive substances prior to entry into the facility.
1. Mr Michael Walker a resident of Gurwood Street, Wagga Wagga, who provided a written submission, and who said that his concerns included:
1. the suitability of the Subject Site for the proposed development;
2. whether the proposed development was in keeping with the amenity of the locality;
3. the safety and well-being of local residents;
4. the potential impacts should clients of the proposed development lapse or re-lapse.
1. Mr Daniel Francis, a resident of Albury Street, Wagga Wagga, who provided a written submission, which went to many of the concerns raised by Ms Longmore (see above at [(1)]). Mr Francis's oral submission also addressed concerns relating to:
1. the management of visitors to the proposed development;
2. the adequacy of community consultation undertaken by the Applicant in relation to the proposed development;
3. whether the proposed development would be better located within a different land use zone, specifically land zoned B3 Commercial Core, in which it would also be a permitted use.
1. Ms Sandra Hulm, a resident of Gossett Street, Wagga Wagga, who provided a written submission that included submissions on behalf of her neighbour, Ms Rosalie O'Kane, and who said that her concerns included:
1. the 'nature of the clients' within the proposed RRH;
2. safety concerns for herself, her husband, and her neighbour, Ms O'Kane;
3. the regulation of the proposed RRH operations as a privately run enterprise;
4. potential impacts on the amenity of the area, including in relation to Cox park which adjoins her residence.
1. Ms Lyndall Hodgson, a resident of McKinnon Street, Wagga Wagga, who provided a written submission, and who said that her concerns included:
1. the adequacy of the management plan for the proposed RRH, including the qualifications of staff proposed for the RRH;
2. the adequacy of parking for the proposed RRH.
1. Ms Christine Buchan, a resident of Gurwood Street, Wagga Wagga, who provided a written submission, and who, in addition to issues raised by other residents, said that her concerns included:
1. amenity impacts from smoking by residents in common areas;
2. the adequacy of proposed levels of staffing to manage clients at the proposed RRH;
3. the adequacy of waste collection from the proposed RRH;
4. whether the proposed RRH was required given the existence of 'a very well established, drug rehabilitation unit in Wagga Wagga';
5. whether the proposed RRH use as a transitional group home might change over time to include acceptance of clients with a criminal history under court orders;
6. risks associated with flood evacuation of clients of the proposed RRH.
1. Mr Barry Meek, a resident of Gurwood Street, Wagga Wagga, who provided a written submission, and who said that his concerns reflected those expressed above by Ms Longmore (see [(1)]), and others.
2. Mr John Hogan, a resident of Warrawang Street, Wagga Wagga, who provided a written submission, and who said that his concerns included:
1. whether the proposed development was a genuine group house under the terms of SEPP ARH (see below at [12]);
2. the potential amenity impacts of the proposed development on the 'environ', that is in relation to local residents in the immediate surrounds of the proposed development.
At the commencement of the hearing at Court, a further oral submission was taken from Mr Trent Harmer, who said that:
1. he was a resident of an area within the south area Wagga Wagga;
2. he had been a resident of another recovery house operated by the Applicant, known as the Sanctuary Recovery House (SRH), in Byron Bay, NSW;
3. his experience at the SRH was positive, and superior, in terms of its approach to drug and alcohol rehabilitation, to other facilities with which he had had experience;
4. within the SRH he had felt well supported and on the basis of this, and its approach to drug and alcohol rehabilitation, he had successfully addressed his addiction issues and had transitioned back to a normal life within the community;
5. the availability of a similar facility, and program, within Wagga Wagga, such as the facility proposed by the Applicant in this appeal, would have been of great benefit to him, as it would have allowed him to address his addiction issues with more direct support from his family In Wagga Wagga, and so without the additional challenge of family separation during his period in rehabilitation;
6. he was supportive of the proposed development, and believed that it would be of benefit to the wider community of Wagga Wagga.
[2]
Environmental Planning and Assessment Act 1979
The objects of the of the EP&A Act are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
Clause 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
[3]
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) aims, inter alia, to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
The provisions of SEPP ARH apply to any proposed group home, which it defines as 'a permanent group home or a transitional group home', and in relation to which it provides that such facilities can be located, inter alia, on land zoned R1 General Residential. The provisions of SEPP ARH in relation to group homes apply to the proposed development.
Clause 46 of SEPP ARH provides as follows:
(1) A consent authority must not:
(a) refuse consent to development for the purpose of a group home unless the consent authority has made an assessment of the community need for the group home, or
(b) impose a condition on any consent granted for a group home only for the reason that the development is for the purpose of a group home.
(2) This clause applies to development for the purpose of a group home that is permissible with consent under this or any other environmental planning instrument.
[4]
Wagga Wagga Local Environment Plan 2010
Development on the Subject Site is subject to the provisions of Wagga Wagga Local Environmental Plan 2010 (WWLEP), and, as identified above, is zoned R1 General Residential.
The objectives of the R1 zone are to:
• ... provide for the housing needs of the community;
• ... provide for a variety of housing types and densities;
• ... enable other land uses that provide facilities or services to meet the day to day needs of residents;
• ... ensure co-ordinated and cost-effective provision of physical, social and cultural infrastructure in new residential areas.
Under the R1 zoning applicable to the Subject Site, a group home is a permissible activity, and under WWLEP:
[a] group home means a permanent group home or a transitional group home; and
[a] group home (transitional) or transitional group home means a dwelling:
(a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and
(b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people. (emphasis altered)
The proposed development includes no new building works, but a change of use. Notwithstanding this, the proposed development is also subject to the provisions of Clause 7.2 of WWLEP concerning flooding, and:
1. the objectives of which are to :
(a) ... minimise the flood risk to life and property associated with the use of land;
(b) ... allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change; and
(c) ... avoid significant adverse impacts on flood behaviour and the environment.
1. which provides under subcl(3):
Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:
(a) is compatible with the flood hazard of the land, and
(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and
(c) incorporates appropriate measures to manage risk to life from flood, and
(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and
(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
[5]
Wagga Wagga Development Control Plan 2013
Development on the Subject Site is subject to the provisions of Wagga Wagga Development Control Plan 2013 (WWDCP), the purpose of which is to support the Wagga Wagga Local Environmental Plan 2010 by providing additional objectives and controls.
The following parts of WWDCP are of relevance in this appeal:
1. Clause 1.10, concerning Notification of Development Applications;
2. Clause 1.11, concerning Compliance with the Wagga Wagga Development Control Plan;
3. Clause 2.1, concerning Vehicle Access and Movement;
4. Clause 2.2 concerning Off-street Parking;
5. Clause 2.5 concerning Safety and Security;
6. Clause 2.7, concerning Development Adjoining Open Space;
7. Clause 4.2, concerning Flooding;
8. Clause 9.1.1, concerning Central Wagga Wagga;
9. Clause 9.1.2, concerning Development in Land Zoned R1 - Established Suburbs; and
10. Clause 9.4.3, concerning Privacy.
[6]
Contentions
At the commencement of the hearing, the Parties agreed that the proposed development:
1. was permissible within the R1 zoning of the Subject Site, and was a specific use identified within the WWLEP as permissible within that zone;
2. was compliant with all provisions of SEPP ARH, including the provisions of cll 44, 45 and 46 of that instrument that specifically provided for transitional group houses;
3. was compliant with the provisions of WWLEP that identified above at [17(2)] concerning the adequacy of flooding issues, and in relation to which the proposed development:
1. is consistent with the objectives of cl 7.2 concerning Flooding (see above at [17]), and
2. fulfils the requirements of s 7.2(3) (see above [17(2)]), concerning which I must be satisfied in order to grant consent, and in relation to which I am satisfied based on:
1. information provided within the Report of Development Application prepared by officers of the Wagga Wagga City Council, which was tendered as evidence at the hearing and which concludes in relation to the proposed development, on p 17 of 43 (at folio 282 of Ex 2), that:
"The risk to property and life as a result of potential flooding is therefore considered minor. There are no further requirements applicable to this development under this section of the DCP.
It is noted that the property may be subject to mandatory evacuation in circumstances where major flooding triggers evacuation of the CBD area. Given the potential vulnerability of the residents and the need for continued accommodation that does not pose a risk to their ongoing rehabilitation, it is recommended that the final RRH Operations Manual include a procedure for relocation of residents during an impending flood evacuation of the CBD"
1. information within the Report to the Ordinary meeting of Wagga Wagga City Council on Monday 24 July 2017, which states:
"Mapping shows that the lot is flood prone and is affected by the 1 in 100-year flood events (CBD protected by the levee). The development will not involve any structural alterations or additions to the building and will continue to satisfy the provisions outlined for development within flood prone areas as contained within Part 4 of the DCP 2010 …. It is satisfied that the development is consistent with the objectives of this clause."
1. details provided within the proposed Riverina Recovery House (RRH) Management Plan, which includes a Flood Safety Management Plan (at pp 21 to 23).
1. was compliant with all other relevant provisions of WDCP, including those identified above at [19], including in relation to flooding, parking, and waste management issues, and which had been previously confirmed with the Report of Development Application prepared by officers of the Wagga Wagga City Council in preparation for a meeting of Council on 24 July 2017, which was tendered as evidence at the hearing.
The Parties were also in agreement that there was a demonstrable need for facilities such as that proposed by the Applicant. The following documents had also been tendered as evidence at the hearing which explicitly documented this need:
1. The report identified earlier (at [20(3)(b)(ii)]), prepared by officers of Wagga Wagga City Council, which had stated:
"The proposed group home will align directly with the findings and directions of the Murrumbidgee Local Health District (MLHD) "Mental Health and Drug and Alcohol (MHDA) Clinical Services Plan 2014-2019". There is a critical shortage with (sic) the MLHD of the type of service offered by the group home, particularly in the form of specialist drug and alcohol rehabilitation services that cater for post detoxification support for drug and alcohol consumers. "
1. A submission in relation to DA 17/0211 concerning the proposed development, prepared by Sergeant NJ Turner, Licensing Supervisor, Wagga Wagga Local Area Command (LAC), and vetted by Superintendent Noble, Commander, Wagga Wagga LAC, dated 22 June 2017, which had stated, inter alia, that, in relation to the proposed development :
"In principle police are supportive of the development on the basis that it provides the region with another treatment option for a range of addictions (Submission page 1 of 13).
and
It is without doubt there is a genuine need for more treatment facilities in the City of Wagga Wagga… (Submission page 12 of 13)."
Notwithstanding this, I am required under s 4.15 of the EP&A Act (see above at [10]), to take into consideration, in addition to the relevant statutory instruments, such of the matters listed in that section of the EP&A Act as are of relevance to the development the subject of the development application, and including:
(1) Matters for consideration - general
...
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
...
As noted by Lloyd J in his judgment in the matter of New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 (hereafter referred to as 'New Century Developments'):
"58 The consent authority must also consider the community responses to the proposed development as set out in the submissions made to the council (s 79C(1)(d) and (e) of the EP&A 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 EP&A Act; Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415 per Bignold J)." (emphasis altered)
Consequently, the Parties confirmed that the key questions requiring resolution in the case were:
1. are the potential impacts of the proposed development, that is the Riverina Rehabilitation House, including potential impacts on resident amenity and neighbourhood safety within the local area, acceptable; and
2. as a consequence of resolving the above question at (1), whether the proposed development is in the public interest and should be approved.
Given the permissibility of the proposed development, and its compliance with all relevant development standards and controls, resolution of the first question requires that I address the concerns expressed in the written and oral submissions of residents during the appeal, including those taken during the on-site view prior to the commencement of the hearing at Court.
It was clear from these submissions that the concerns, and indeed fears, of local residents were genuinely held.
The submissions of locals were provided in significant detail (see above at [6]), and their written submissions were tendered as evidence at the hearing. I would summarise their concerns, other than those already addressed above, as falling under the following subject areas:
1. the suitability of the proposed location for the RRH;
2. community and resident safety, including safety of children;
3. proximity of RRH to recreational venues, such as the Wagga Wagga RSL and hotels within the Wagga Wagga business district;
4. potential amenity impacts from facility operations;
5. other potential general amenity impacts on residents, including potential impacts of client lapse and re-lapse;
6. the adequacy of the management plan for the proposed RRH;
7. the adequacy of parking for the proposed RRH;
8. potential impacts on property values;
9. regulation of RRH operations by a private sector operator;
10. community consultation by the Applicant.
The task before me in this matter, responding to the first of the key questions in this case, and cognisant of the legitimate concerns expressed in resident submissions, is to test these concerns against the expert evidence available to me. This approach will assist me to reach a conclusion in relation to the potential impacts of the proposed development based on my assessment of the concerns expressed by residents in the context of that expert evidence.
Further guidance in undertaking this task is provided in the judgment (referenced above at [23]) of Lloyd J in New Century Developments, in which, in addition to the comment quoted above, His Honour also commented:
"61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.
62 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 EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]).
63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "… the demonstrable social effect of a particular …use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48])." (Emphasis altered)
Noting these comments, during the hearing the Court was assisted by expert evidence from the following individuals.
1. Superintendent David Noble, District Commander - Riverina Police in the Riverina Local Area Command;
2. Dr Judith Stubbs, who had prepared an individual report that was tendered as evidence at the hearing. She was also the author of a joint expert report with Dr Ho, that was also tendered as evidence at the hearing;
3. Dr Jonathan Ho, a medical practitioner, who had prepared an individual report that was tendered as evidence at the hearing. As noted above, Dr Ho was also the author of the joint expert report with Dr Stubbs, that was also tendered as evidence at the hearing.
[7]
Are the potential impacts of the proposed development, including potential impacts on resident amenity and neighbourhood safety within the local area of the proposed development acceptable?
As discussed above, it was common ground between the Parties that the proposed development, that is the proposed RRH, would address a need within the community for facilities to support the rehabilitation of individuals impacted by alcohol and/or drug addiction, and their re-integration into the community.
This need was further confirmed by experts, including by the testimony of Superintendent Noble, Commander of the Riverina LAC.
I have already provided my summary (at [27]) of the principal areas of concerns raised by residents in their submissions. I will address each of these in relation to the expert evidence provided to me during the hearing.
[8]
The suitability of the proposed location for the RRH
The Subject Site is zoned R1 General Residential, as is the most of area around it.
As discussed above (at [16]) a group house, including a transitional group house, is a permissible use on land zoned R1, and so this use of land is specifically envisaged under the provisions of Wagga Wagga Council's LEP to be located within residential areas.
Further, SEPP ARH supports, and indeed encourages, the establishment of group houses within areas zoned R1 General Residential.
Finally, it was the evidence of Dr Stubbs that group houses are by preference established within a residential setting as their purpose in supporting the integration of clients into the community is best achieved in such areas, and is less effectively attained if such facilities are located outside of residential settings.
Based on the evidence before me, including the evidence of Dr Stubbs at [37], along with the submissions of both Parties that the RRH is both permissible and compliant with all development standards and controls within SEPP ARH, WWLEP and WWDCP, I conclude that the Subject Site is suitable as a location for the proposed development.
[9]
Community safety
The issue of community safety was addressed by evidence from each of Superintendent Noble, Dr Stubbs and Dr Ho.
In his evidence at the hearing, Superintendent Noble said that:
"(1) the NSW Police did not object to the establishment of the proposed RRH, and indeed, broadly supported the proposed development;
(2) based on his experience with the Calvery Riverina Drug and Alcohol Centre, he did not hold any concerns in relation that the proposed RRH would give rise to any amenity impacts on local residents nor that it would give rise to any increase in crime in the area;
(3) he was not aware of any on-going problems as a consequence of the operation of the Calvery Riverina Drug and Alcohol Centre;
(4) were an incident to occur in relation to a client of the proposed RRH, the NSW Police would be able to attend the RRH facility following a triple zero emergency call within 'a handful of minutes' as a consequence of the proximity of the Wagga Wagga Police Station on Tarcutta St, Wagga Wagga to the Subject Site;
(5) that he endorsed, as a fair record, the transcript of a conversation between himself and Dr Stubbs, contained within the joint report of Drs Stubbs and Ho, in which he had said:
"That said, Wagga has a lot of drug users and drug use as a result of the lot of people willing to sell drugs - to put context around that - I would say we need more rehabilitation facilities to address that - I don't care who runs them, public or private - the best way to diminish drug use and drug dealing is to reduce demand, and treatment for addiction addresses that demand. If you can access addiction that is how you can reduce the demand and the resultant drug related crime and the things that people do to maintain their addiction. They'll do all sorts of desperate things. That is the context in which the application sits.
I can understand people's concerns. I can. But I can honestly say that with hand on heart that if I was living in a beautiful street like Gurwood - if you were to say to me that this is going in next door to me - I wouldn't have a problem with it. When I was living in another nice part of town a few years ago there was a group home for people with mental illness and I lived about five doors up from that and never knew it was there until one day I saw a crime report come across my desk with that address listed for a person who had gone missing from there. I said what is that at [the address]? People said, "Oh that is the group home for people with mental illnesses. I didn't even know it was there, and I had lived there for a few years".
The Court also took evidence from Dr Stubbs in relation to this issue, and in relation to which Dr Stubbs confirmed:
"(1) the RRH would not be providing primary detoxification services for potential clients, but would provide services to support clients who had achieved a confirmed minimum period of abstinence from any addictive substances;
(2) all clients entering the proposed RRH would do so on a voluntary basis;
(3) all clients entering the facility would be doing so on the basis of having made both a personal commitment to the programs, timeframes and rules associated with the proposed RRH, as well as a significant financial commitment underscoring their personal commitments;
(4) entry to the proposed RRH would be based on a screening program that would include:
(a) the exclusion from entry to the RRH of any persons who had been convicted of any crimes related to aggressive behaviours;
(b) three stages of screening by staff and clinicians."
In closing, Mr To, for the Applicant, drew to the Court's attention a letter provided by Ms Robin Haberecht, the General Manager of the Calvery Riverina Hospital (CRH), in which she said that:
"(1) CRH included the Calvery Riverina Drug and Alcohol Centre (the Centre) as a facility on the hospital campus;
(2) the Centre is an integrated acute withdrawal and sub-acute residential rehabilitation facility, with a 32-bed capacity, that had operated since the mid-1970s, and which is located within the Wagga Wagga CBD;
(3) the Centre provides:
(a) programs supporting the medical withdrawal from alcohol and other drugs;
(b) support to clients through their acute withdrawal and rehabilitation from alcohol and drug addiction, overseen by general medical practitioners;
(c) a range of treatment options including both inpatient and outpatient services;
(4) the provision of residential treatments by CRH had had negligible impact on surrounding residents' homes and businesses;
(5) she understood that the proposed RRH would provide services to a cohort of clients that differed from those treated by CRH, insofar as the RRH would support clients who:
(a) would enter the proposed RRH on a voluntary basis;
(b) were in a maintenance phase of treatment;
(c) had already made considerable changes to their use of alcohol and drugs along with other positive lifestyle changes;
(d) required less intensive support from staff and other professionals, presumably in comparison to the clients of the Centre at CRH;
(6) the CRH supported the establishment of the proposed RRH as it would enhance existing services provided by CRH and would expand treatment options for those requiring assistance in the area of alcohol and drug rehabilitation."
Based on the evidence of Superintendent Noble, Dr Stubbs and Dr Ho, together with the advice provided in written form from the General Manager of CRH, I am satisfied that, notwithstanding the concerns of local residents, the evidence before me supports a conclusion that the establishment of the RRH is unlikely to give rise to any safety impacts on local residents, including in relation to the children of local residents moving in the vicinity of the RRH..
I am further satisfied that, in what evidence suggests is a low probability of a safety issue arising at the proposed RRH, such an event would be mitigated by the attendance of the NSW Police in a short timeframe, given the proximity of the Subject Site to the Wagga Wagga Police Station in Tarcutta Sreet.
[10]
The proximity of RRH to licensed venues
This issue was raised by some residents in their submissions to the Court, but was not identified by any of the expert witnesses as a matter of specific concern during the hearing. However, the issue relates to another concern, also expressed by local residents, in relation to whether clients of the proposed RRH would be prone to a lapse or re-lapse in relation to their alcohol or drug addiction.
Given that the concern related to licensed venues, I have taken the concern to relate principally to the potential for clients to lapse or re-lapse in relation to an alcohol addiction.
Dr Stubbs and Dr Ho, addressed the matter of client lapse and re-lapse, and associated risks, within their joint expert report. I will, therefore address this issue in that context (see below at [54] to [68]).
[11]
Potential amenity impacts from facility operations, including use of outdoor areas
Residents expressed concern in relation to the operation of the proposed RRH, and specifically in relation to the potential use of the outdoor areas for group activities and discussions, and as smoking areas for the use of clients of the proposed RRH.
The draft Management Plan for the proposed RRH includes proposals for the mitigation of potential privacy and noise impacts in relation to the use of outdoor areas by clients and staff, and includes:
1. confirmation that the proposed development provides for use of five 'outdoor open recreation areas', each of which is designated in terms of location and use;
2. designation of activities to be undertake in each area for the purpose of noise control and to minimise disturbance to neighbours;
3. confirmation that all outside areas are subject to a 10pm curfew throughout the year;
4. the designation of the uncovered timber deck area (Open Space 5) adjacent to Gurwood Street property boundaries as a 'Quiet Zone';
5. a requirement that all conversations within designated outdoor open areas be at the level of 'reasonable domestic conversational volume';
6. a requirement that there be no amplified music, nor use of stereos and radios in outdoor open spaces;
7. a requirement that group sporting or recreational activities with the potential to create noise, such as ball games, will not be undertaken on site but at nearby recreational ovals and sporting grounds;
The draft Management Plan, and the design of the proposed RRH, provides that smoking would be limited to the following two designated areas at the facility:
1. an outdoor area at the rear of the Subject Site, in the rear setback to the adjoining property on the corner of Gossett Street and Rhoda Ave. This area is located adjacent to the side wall of the rear garage of the property at 2 Rhoda Ave that has its entry from Gossett Street.
2. an outdoor area at the side of the Subject Site fronting Gossett Street, and near to its corner with Gurwood Street.
It is my assessment that both of these areas, which I viewed on site during the site inspection, are located such that they will not give rise to any undue impacts on residents of adjoining properties.
Finally, the draft Management Plan also includes a procedure for the receipt and management of complaints by local residents, and a commitment to quarterly community consultation with neighbours.
Based on the above facts (at [49] to [52]), I am satisfied that the draft Management Plan for the proposed RRH adequately responds to concerns of residents in relation to potential impacts from the use of outdoor areas under the proposed development.
[12]
Other potential general amenity impacts on residents, including potential impacts of client lapse and re-lapse
The potential for clients of the proposed RRH to give rise to amenity impacts on residents, including potential impacts due to client lapse and re-lapse, was the subject of testimony from Superintendent Noble, a submission from Ms Robin Haberecht, the General Manager of the CR, and expert evidence of Drs Stubbs and Ho.
I note the discussed previously evidence provided by Superintendent Noble during the hearing (see above at [39] and [40]), including his opinion that:
1. based on his experience with the Calvery Riverina Drug and Alcohol Centre, he did not hold any concerns in relation that the proposed RRH would give rise to any amenity impacts on local residents nor that it would give rise to any increase in crime in the area; and
2. were an incident to occur in relation to a client of the proposed RRH, the NSW Police would be able to attend the RRH facility following a triple zero emergency call within 'a handful of minutes' as a consequence of the proximity of the Wagga Wagga Police Station on Tarcutta Sreet, Wagga Wagga to the Subject Site.
I also note once again, the statements of Ms Robin Haberecht, the General Manager of the CRH, made in a letter that was tendered as evidence at the hearing (see above at [42]) that the provision of residential drug and alcohol treatment programs by CRH had had negligible impact on surrounding residents' homes and businesses.
The evidence of Dr Stubbs and Dr Ho contained elements of agreement and disagreement on this subject.
The experts agreed that:
1. drug and alcohol addiction is a chronic medical condition that cannot be 'cured' but can be treated, with varying levels of success related to treatment modality and client related factors;
2. relapse often occurs with different consequences or outcomes associated with different treatment approaches, and is a normal part of recovery for many people with drug and/or alcohol addictions;
3. lapses can occur in residential facilities (for example, where a person has a drink at a friend's place when one day leave). Such lapses are met with a range of responses under the policies of different facilities;
4. it is well understood in research and policy that there is no guarantee that a person will not lapse or even relapse when in residential rehabilitation or aftercare;
5. relapse is less likely, and outcomes generally better, when a client has been involved in a residential rehabilitation and aftercare programs;
6. the risk of lapses or relapses needs to be minimised through appropriate management policies and procedures;
7. some risks of adverse behaviour, including behaviour spilling into the public domain, remain. These risks cannot be entirely eliminated, although they can be minimised.
Dr Stubbs and Dr Ho disagreed in relation to the adequacy of certain aspects of the draft Management Plan to reduce the risk of amenity impacts associated with negative behaviours of clients should these spill into the public domain. I also disagreed as to the nature and severity of that risk. Dr Ho said that he remained concerned that the management arrangements for the proposed RRH would not be sufficient to adequately mitigate the risk of amenity impacts to local residents.
In her evidence within the joint expert report prepared with Dr Ho, Dr Stubbs had said that she had not identified any evidence, either from the literature, or from the four case studies she had examined during her primary research (conducted in the preparation of her individual statement of evidence), or from the community survey she had conducted in response to Dr Ho's concerns in relation to potential adverse behaviours, that tangible safety and amenity impacts would arise in the vicinity of the proposed RRH.
Dr Stubbs further stated that there is evidence that the facilities reviewed within her case study undertaken in relation to the current appeal were well accepted and/or positively regarded within the communities and were good neighbours.
Dr Ho also expressed the opinion that the Murrumbidgee Mental Health Drug and Alcohol Alliance (MMHDAA) provided a novel and relatively new approach to collaboration within the drug and alcohol rehabilitation sector in the Murrumbidgee region. He noted that under its current model, membership of the MMHDAA was restricted to government funded, or part government funded, organisations.
In response to Dr Ho's concerns in relation to the adequacy of the draft Management Plan for the proposed RRH, Dr Stubbs said that the document sets out client screening processes and further processes for the management of clients during their stay, including curfew periods, sign in/sign and sign/out procedures.
A further range of measures, proposed by Dr Stubbs to strengthen the Draft Management Plan, were provided during the hearing (see below at [72]), and these were embraced by the Applicant.
Dr Stubbs also agreed that there would be benefit in the proposed RRH establishing a link to the MMHDAA, and the Applicant also embraced this proposal.
While I accept that the risk of lapse, and re-lapse, cannot be eliminated, I am satisfied, based on the evidence before me, including the evidence of the District Commander of Police in the Riverina Local Area Command, that this risk is low.
I am also satisfied that the planned operations of the proposed RRH, including the draft Management Plan, potentially strengthened through the further recommendations of Dr Stubbs, are adequate to mitigate and manage any such risk.
Based on this, I conclude that resident concerns in relation to the lapse or re-lapse of clients of the proposed RRH, including the risk of potential amenity impacts on residents, is not a reason for refusal of the Applicant's proposed development.
[13]
The adequacy of the management plan for the proposed RRH
The subject of the adequacy of the management plan for the proposed RRH was the subject of expert testimony from Dr Stubbs and Dr Ho during the hearing, as well as submissions of the Parties.
Dr Stubbs and Dr Ho had agreed within their joint report that the proposed RRH would be a functional facility, proposed a sound rehabilitation program, and that the draft Management Plan could be further strengthened.
In particular, and as discussed above, the experts did not agree on the adequacy of the draft Management Plan to mitigate risks of potential amenity impacts associated with the negative behaviours of some clients should these spill into the public domain and surrounding areas. They also differed in their views concerning the nature and severity of those risks.
In her written evidence provided in the joint expert report with Dr Ho, and also during the hearing, Dr Stubbs proposed additions to the draft Management Plan that responded directly to the concerns of Dr Ho, and which she said would further strengthen the document. These proposals, which were embraced by the Applicant, were as follows:
1. that the proposed RRH should seek associate membership of the MMHDAA. Dr Ho had expressed the opinion (see above at [62]) that a relationship with the MMHDAA would strengthen the effectiveness of the proposed RRH in achieving its rehabilitation objectives;
2. the final Management Plan should require that all future residents of the proposed RRH be provided with a resident handbook upon entry to the facility. This handbook should clearly communicate key components of the Management Plan including house rules, so-called 'cardinal rules' and consequences for their breach, program details, expected resident behaviours, curfew hours, drug and alcohol screening procedures, procedures for use of outdoor spaces, and processes for escalation of staff intervention in the event of more major or repeated breaches of any of the above procedures;
3. The RRH Manager or other senior staff would be required to remain on-call to provide a response to after-hours incidents, should any of the these arise;
4. a requirement that on-call staff must be located so as to enable their arrival at the facility within a twenty minutes window should they be called to the proposed RRH;
5. that the Management Plan should confirm that any client who had lapsed or committed a serious breach of the agreed behaviours would be provided with the opportunity to stay at the RRH overnight, or until they were able to proceed to a safe place, or leave with their nominated support person. They would stay within the room or other safe area within the RRH during this period;
6. a requirement that urine testing protocols would be used to ensure that all clients had been drug and alcohol free upon entry to the proposed RRH for a period of at least seven days prior to entry;
7. a requirement for night staff to ensure that night curfews were enforced, and a requirement that if clients failed to return to the RRH, backup procedures would be initiated with on-call staff;
8. a requirement that a sign-in and sign-out book should be provided to assist in monitoring the presence or absence of clients at any time;
9. requirements that, in relation to visitors to the RRH,:
1. visitors would only be permitted in public areas within the facility;
2. all visitors must be 'clean and sober' at the time of their visit to the RRH, and visitors must be willing to participate in drug and alcohol screening should staff of the RRH assess this to be necessary;
1. requirements that, in relation to client screening:
1. prospective clients of the proposed RRH would provide permission for staff to undertake criminal checks and 'working with children' checks prior to their approval for entry into the facility;
2. prospective clients would provide permission for staff to access GP, psychiatric and other medical records, prior to their approved entry into the facility;
3. prospective clients would provide permission for staff at the RRH to make any other enquiries deemed appropriate for the purposes of screening, prior to their approved entry into the facility.
During the hearing Dr Stubbs also agreed that the draft Management Plan would be strengthened through the inclusion of:
1. details of the qualifications and experience of the proposed RRH Executive Director;
2. confirmation that the minimum stay by clients in the RRH would be eight weeks;
3. confirmation that the second stage of screening assessment for potential clients at the proposed RRH would be undertaken by the clinical consultant rather than the appointed RRH Manager.
Subsequent to the finalisation of the hearing, the Applicant prepared, and filed with the Court, an amended Management Plan for the proposed RRH, which incorporated the above, agreed, revisions.
Following review of the revised Management Plan filed with the Court, I am satisfied that it provides an acceptable and robust framework for the management of the RRH, and for the mitigation of risks associated with the establishment and operation of the facility.
[14]
The potential impacts of the RRH on property values
The potential impact of the RRH, should it be approved, on property values in the vicinity of the Subject Site, was the subject of a Social Impact Assessment (SIA) report prepared by EMM Consulting, which was tendered as evidence at the hearing. The EMM SIA also included 'preliminary' advice from Opteon Property Group on potential property value impacts related to the proposed establishment of the RRH.
That report, including the accompanying advice from Opteon Property Group, noted the following:
1. the market value of any individual property is influenced by many variables;
2. in the majority of cases, the perceived impact of development is greater than the reality;
3. in research undertaken by Opteon, and reported in their advice, the effect of a facility such as proposed by the Applicant on the market value of properties in the local area is 'greatest at the beginning of a development or project. The impact usually subsides after commencement as the center (sic) establishes a track record and the reality becomes obvious.'
4. there would always be some potential buyers who would avoid purchasing in the area of a rehabilitation house 'at all costs', but for other potential purchasers living close to such a facility is not a concern;
5. notwithstanding the above points, the Opteon report said that the establishment by the Applicant of another rehabilitation house, known as the Sanctuary, in Byron Bay had had no effect on the values of surrounding properties.
In relation to potential impacts of the RRH on property values, the EMM SIA concluded, in that while short term concerns may temporarily impact on the demand for housing in the vicinity of the Subject Site, the proposed RRH would not be expected to have a significant impact on the long-term value of properties in the area of the Subject Site.
Earlier in this judgment I addressed the legitimate concerns of residents in relation to amenity, and notably in relation to the potential for the proposed development to generate community safety impacts. I concluded, based on the evidence of the experts, as well as on the statements of Superintendent Noble, and Ms Haberecht of the Calvery Hospital, that, notwithstanding the concerns of local residents, the evidence suggested that the risk that the proposed development would give rise to potential amenity impacts, including community safety impacts, was low.
Having considered the evidence before me in relation to potential impacts on property values, I have reached a similar conclusion that, notwithstanding the genuinely held concerns of residents, the likelihood of significant property value impacts, particularly in the longer term, is low, and is not a sufficient basis for the Applicant's proposed development to be refused.
[15]
The regulation of RRH operations by a private sector operator
Residents expressed a concern that the proposed development was a private sector initiative and so would not be subject to regulation, and by implication oversight, by a regulatory authority.
In response to this concern, the Applicant submitted that, should the Court grant consent to the proposed RRH, it would be required to operate in a manner consistent with any conditions of consent issued by the Court, to which it could then be held to account by Wagga Wagga City Council and members of the community.
I concur with this assessment, and accept that the proposed RRH, if approved, would be required to operate:
1. subject to conditions of consent issued by the Court with any approval;
2. under the arrangements provided in the final Management Plan, which would include the recommendations made during the course of this appeal, and the proposals for further improvements made by Dr Stubbs in her evidence, and which were embraced by the Applicant;
3. subject to compliance responsibilities of Wagga Wagga City Council;
4. in consultation with:
1. local residents through their participation in quarterly community consultation meetings;
2. NSW Police representatives from the Riverina Local Area Command, based in Wagga Wagga.
Further, the Applicant committed during the appeal to seek associate membership of the MMHDAA, which if attained, would enhance the engagement of drug and alcohol rehabilitation sector peers in supporting the RRH once it was operational.
As a consequence of the above, I am satisfied that the concerns of residents with respect to the private sector nature of the proposed RRH operator, and oversight of those operations, have been satisfactorily addressed by the Applicant, and do not constitute a basis for refusal of the Applicant's proposed development.
[16]
Community consultation by the Applicant
Local residents submitted that the Applicant had not undertaken sufficient consultation with the local community during the process of preparing and seeking determination of its development application for the proposed RRH.
The Respondent's statement of facts and contentions in this matter, tendered as evidence at the hearing, stated that the following consultations were undertaken in relation to the proposed RRH:
1. the Applicant's development application DA17/0211 was lodged with Council on 10 April 2017, and was notified to residents, and advertised, on 8 May 2017. It was placed on exhibition for a fourteen day period until 22 May 2017, as required under the provisions of Section 1.10 of WWDCP, and during this period a total of 37 submissions were received in relation to the proposed development.
2. The development application was referred to the NSW Police - Wagga Wagga Local Area Command - for comment.
WWDCP Section 1.10 provides that the notification periods in the DCP are minimum notification requirements and that these may be increased at the discretion of Council. I note that Council did not seek to increase the notification requirements in relation to the proposed development beyond that required within WWDCP, and the requirements of WWDCP have been satisfied in relation to the notification and exhibition provisions therein.
The appeal process, under the jurisdiction of the Court, has provided a further opportunity for residents to identify concerns in relation to the proposed development, and to have these concerns addressed, and tested, in relation to evidence during the hearing of this appeal.
I note that the Management Plan for the proposed RRH includes a proposal that, should the proposed RRH be granted approval, the Applicant would undertake quarterly community consultation meetings with local community members in the vicinity of the RRH.
In circumstances where it is always possible to undertake more consultation with the community and potentially impacted residents, I am satisfied that the Council, and therefore the Applicant, have met the requirements for consultation during the assessment and determination processes concerning the proposed development.
[17]
Other matters
The Respondent proposed, within a draft condition of consent (draft Condition 16), that, should it be approved, the proposed RRH should operate on a trial basis for two years, as follows:
"16. Notwithstanding any other condition of this consent, the use approved by this consent is only for a trial expiring on the date that is the later of:
a) 24 months from the date of this consent;
b) such later date on which any modification application to delete this condition lodged prior to the date mentioned in (a) has been finally dealt with by way of refusal (including any appeal).
After the end of the trial period, the use shall cease."
The Court's powers to impose a condition limiting a proposed use to a trial period were confirmed in the judgment of their Honours Speigelman CJ, Meagher JA and Beazley JA in their Court of Appeal decision in Zhang v Canterbury City Council [2001] NSWCA 167, in which the Chief Justice said (at [83]):
"I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement that the decision maker "take into consideration" both the "likely impact of the development" and "the suitability of the site for the development". It is possible to "take into consideration" matters even though their full significance cannot be known with precision."
The Respondent also drew the Court's attention to the following observation within that judgment by the Chief Justice:
"... The Commissioner made a finding that there was insufficient evidence of the "likely impact" to approve the use without a condition limiting its duration. ..."
The Chief Justice later stated, in relation to the finding of the Commissioner in the original case that if a time limited consent should be granted, that 'It was open to the Commissioner to make such a finding'.
In this matter, I have assessed the likely impact of the development, and the suitability of the site for the proposed development, and I have concluded that, based on the evidence before me, and notwithstanding the concerns of local residents, there is unlikely that any significant impact would arise as a consequence of an approval of the RRH.
In doing so, I acknowledge, as did the experts who provided evidence in the appeal, that it is impossible to assert with certainty that there will be no impact. This was particularly the case in relation to the possibility of lapse and re-lapse of potential clients of the proposed RRH.
However, I am satisfied that the probability of impacts arising during the operation of the proposed RRH, if approved, is low. I am further satisfied that the plans for the proposed RRH, including draft Management Plan, prepared by the Applicant, and as amended to reflect the proceedings in this matter before me, are acceptable, and support approval of the Applicant's proposed development.
I have considered the Respondent's proposal for a condition of development consent that would limit the consent to a trial period of two years. My assessment of this proposal is that it would be unreasonable, and an unnecessary imposition, to place a time limit of two years on the approval, as it would burden the Applicant, and the operation of the proposed RRH, to the detriment of its clients, the efficient operation of the facility by the staff, and the achievement of its purpose.
I have, therefore, decided that such a condition of consent should not be included within the conditions of consent that would apply to the proposed RRH, once approved.
[18]
Conclusions
Having considered the submissions of the Parties, and the evidence of the expert planners, I am satisfied that:
1. the potential impacts of the proposed development are acceptable and, based on the evidence before me, are unlikely to pose a safety risk to the local community, including children, and are unlikely to adversely affect the amenity of residents in the local area;
2. as agreed by the Parties at the commencement of the hearing (See above at [20]), the proposed development is compliant with the relevant development standards and controls applicable to it in relation to the provisions of EP&A Act, SEPP ARH, WWLEP and WWDCP.
I have, therefore, concluded that, in relation to the second question identified by the Parties at [24(2)]:
1. the proposed development is in the public interest;
2. the Applicant's Development Application DA2017/0211 for the conversion of an existing dwelling to a transitional group house, at 199 Gurwood Street, Wagga Wagga, should be approved, subject to conditions.
At the conclusion of the hearing the Court directed, with the consent of the Parties, that a further revision of the proposed RRH Management Plan would be prepared by the Applicant, and filed with the Court, to reflect amendments agreed by the Parties, and their experts, during the hearing.
The Parties also agreed to file after the hearing, a further amended set of agreed conditions of consent, to reflect proposals accepted by the Parties and their experts that would provide additional measures to:
1. strengthen the management arrangements for the RRH; and
2. enhance the operations, and transparency of operations, of the RRH so as to mitigate concerns raised by residents, and by the Respondent on behalf of the community of Wagga Wagga, during the hearing.
Both the amended Management Plan and the further revised conditions of consent were filed by the Parties, as directed, and I am satisfied that they reflect the agreements of the Parties and their experts during the hearing. The orders of the Court provided below at [108] are consistent with these filed documents.
Having reached the conclusion that the Applicant's proposed development of the RRH should be approved, I am aware that residents of the local area in which the RRH will operate, have not, to date, embraced the proposal. However, based on evidence before me, the RRH is needed, and will be of benefit to the community of NSW, including the community of Wagga Wagga.
I encourage residents of the area around the RRH, and of Wagga Wagga more generally, to view it, and its future clients, with compassion, and to provide support to this facility, and its work. I am confident that the community, including those residents living in the vicinity of the RRH, will respond in this manner.
[19]
Orders
The orders of the Court are:
1. The appeal is upheld;
2. The Applicant's development application DA17/0211 for the conversion of an existing dwelling to a transitional group home, to be known as the Riverina Recovery House, is determined by the grant of consent, subject to the conditions attached hereto at Annexure 'A';
3. The exhibits are returned, except Exhibits A, H and 5.
……………………….
Michael Chilcott
Commissioner of the Court
Annexure A
[20]
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Decision last updated: 02 April 2019