Dem (Aust) P/L v Pittwater C

State Environmental Planning Policy No 5 - Housing for the Aged and Disabled (SEPP 5) Pittwater Environmental Plan 1993 State Environmental Planning Policy No 65 LEGISLATION CITED: Pittwater 21 Draft Local Environmental Plan Pittwater 21 Development Control Plan Residential Flat Design Code Environmental Planning and Assessment Act 1979

CASES CITED: Dem (Australia) Pty Ltd v Pittwater Council [2004] NSWCA 434

APPLICANT Mr J. Bingham, solicitor of Deacons

RESPONDENT LEGAL REPRESENTATIVES: Mr M. Craig, QC with Ms J. Jagot, barrister instructed by Ms N. Tregoning, solicitor of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11268 of 2003 Dem (Aust) Pty Limited v Pittwater Council

JUDGMENT 1 This appeal relates to development application No NO600/03 for a multi unit residential development under State Environmental Planning Policy No 5- Housing for the Aged and Disabled ("SEPP 5") at 18 Jubilee Avenue. Warriewood ("the proposal"). More particularly the proposal is to comprise 105 dwellings in four, three-storey residential buildings in a "U" shaped formation. Two centrally located buildings will provide community and reception facilities. A basement car park with access off Jubilee Avenue will provide 154 parking spaces for residents, visitors, staff and deliveries. 2 The site as shown on figure 1 is situated on the northeastern corner of the intersection of Jubilee Avenue and Ponderosa Parade and comprises Lot 2 in DP 1049840. It has an area of 14,890 sq m and a cross fall from north to south and east to west of approximately three metres. 3 Development in the area surrounding the site includes residential, light industrial and commercial. Residential development exists in the locality further to the north beyond Mona Vale Road and further to the east beyond Warriewood Road. The Pittwater RSL club is located close by in Mona Vale Road. Statutory provisions 4 The site is situated in Zone No 3(e) (Office Business "E") under Pittwater Local Environmental Plan 1993 ("the LEP"). Adjoining lands to the west, north, and east and immediately opposite to the south is also zoned 3(e). Adjoining land to the southwest and southeast is zoned Industrial 4(b). The closest residentially zoned land is to the east of Warriewood Road and to the north of Mona Vale Road. 5 The proposed development is prohibited in the 3(e) zone. However pursuant to cl 4(i)(b), SEPP 5 applies to land on which development for the purpose of dwelling-houses is permitted. In the 3(e) zone, dwelling-houses used in conjunction with commercial premises or industry and situated on the land on which the commercial premises or industry are or is conducted are permitted with development consent. In these circumstances, and notwithstanding the qualification associated with the permissibility of dwelling houses in the 3(e) zone, there was no dispute that the proposal is permitted with development consent pursuant to SEPP 5. (See DEM (Australia) Pty Ltd v Pittwater Council (2004) NSWCA 434) 6 We accept this interpretation and this judgment deals with the application on this basis, even though it may be doubtful that this is the kind of outcome anticipated by the authors of SEPP 5. Clearly the form of dwelling houses anticipated in the 3(e) zone, is that of a caretaker's or security manager's residence associated with commercial premises or industry, in a commercial or industrial area. This is a particular exception to the principle that commercial or industrial areas are generally not suitable for residential purposes. Conversely some commercial zones are specifically formulated to facilitate certain residential development for example in the form of shop-top housing but this does not apply here. Indeed the form of the proposed development can be clearly distinguished, being purely residential and having no association to the principal purpose of the zone. 7 We note that the council now proposes by way of a draft local environmental plan to amend the 3(e) and the 4(b) and 4(b1) zones so as to exclude the form of dwelling-houses permitted in this zone, apparently a necessary but in our view unfortunate response to this present situation, caretaker's or security manager's residences being an appropriate ancillary form of development in the zone. This draft LEP is neither imminent nor certain having recently come of exhibition and thus attracts little weight. 8 In its provisions it appears that SEPP 5 does not contemplate the provision of housing for older people or people with a disability within an area zoned principally for industrial and commercial purposes. One of the aims of SEPP 5 involves the provision of housing of good design and this can be achieved, in part, by following design principles to achieve a built form that is responsive to the characteristics of the site and the location. The design principles that deal with neighbourhood amenity and streetscape are to be found in s 25(a). The majority of these principles are directed at the protection of neighbour amenity and residential character. At the same time we recognise that large integrated SEPP 5 developments, such a this, are often difficult to locate in residential areas with a single dwelling character as the building form required to accommodate such developments is often objected to by local residents on the basis of being out of character. The proposal does not suffer from this constraint. 9 Section 25(a)(i) of SEPP 5 requires that a proposed development should contribute to an attractive residential environment with clear character and identity. Existing commercial and industrial development and zonings in the locality in which the site is situated cannot be described as a residential environment and it must again be questioned whether what is sought by this application is consistent with the intent of SEPP 5. 10 In addition to SEPP 5 the following instruments are also applicable: * State Environmental Planning Policy No 65 ("SEPP 65") * Pittwater 21 Draft Local Environmental Plan ("the draft LEP") * Pittwater 21 Development Control Plan ("the DCP") * Residential Flat Design Code Advertising and Council's decision 11 The application was advertised and three submissions were received objecting to the proposal. Matters of concern raised in these objections include: * The site is in an inappropriate location for housing for the aged and disabled. * Prospective residents would be adversely affected by the noise generated by surrounding commercial and industrial developments and associated vehicular traffic. * Access to the nearby bus stop is inappropriate for aged and disabled people in terms of distance and gradient * The proposal is to the situated in an area that is devoid of residential development and being in an isolated industrial and commercial area, residents' safety would be compromised. 12 A letter was also received from the Pittwater RSL Club expressing support for the proposal, explaining that it would be beneficial for the local community and the future of the club. The club also noted that it has future plans to extend members facilities onto adjoining land in close proximity to the proposal. 13 Following consideration of a report prepared by a Development Officer recommending refusal the council decided that the application should be refused for 25 reasons. These reasons provide the basis of the statement of issues now before the Court.

The evidence 14 On behalf of the respondent Council expert evidence was given by: * Mr L Dyce - town planner * Mr L Godfrey - social planner 15 On behalf of the applicant expert evidence was given by: * Mr C Hill - town planner * Mr G Porter - social planner * Mr P Leyshon - land economist

16 Evidence was also given by the following court appointed experts: * Ms R Saltman - social planner * Mr M Hill - land economist

The issues 17 The statement of issues identifies ten separate issues of concern to the respondent. Three of these issues were identified as being capable of resolution by the imposition of conditions. 18 In our view, having considered all of the evidence, the remaining central issues involve whether the proposal is in an appropriate location, being situated on land zoned for employment generation and business development adjacent to land developed for light industrial and commercial uses and whether the loss of 3(e) zoned land for residential use is significant. The issue also arises as to whether the proposal would provide residents with an appropriate level of amenity. Location 19 Dealing with the strategic planning aspects of the Warriewood Valley Release Area, Mr Dyce provided a lengthy discourse with numerous appendices explaining in considerable detail how the council had produced its development strategy and arrived at the present zoning scheme for this urban release area. He also explained how the Warriewood Valley Contributions Plan under s 94 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") and "the contributions plan") had been prepared in support of the integrated infrastructure provision strategy. 20 Mr Dyce described the industrial and commercial zoned lands in the Warriewood Valley as Council's employment generating lands, which are an important part of the planning strategy for the valley. These lands include the subject and surrounding lands in the 3(e) and the 4(b) zones. 21 Mr Dyce had a number of particular concerns: * The proposal would result in a significant portion of Council's employment generating lands (ie about 1.5 hectares) being no longer available for this purpose. These lands are required because as expected population growth will continue and so too will the demand for local jobs. The existing pattern of regional employment in the Manly-Warringah-Pittwater area exhibits a high degree of self-containment. * The likely adverse consequences that this proposed development would have on the contributions plan that does not provide for the delivery of services and facilities associated with residential development. The plan would need to be amended to provide for the provision of services and facilities such as an appropriate local park, pedestrian and cycleways and land use buffers. * The proposal is to be situated in an inappropriate location in Warriewood Valley and would be incompatible with surrounding zones and land uses and therefore would be adversely affected by the characteristics of the surrounding existing/future industrial and commercial development and its traffic. * The proposal would comprise an island community, isolated from residential development and its infrastructure and facilities.

22 Mr Dyce recognised the present slow take-up rate of industrial and commercial land but argued that this was not a justification for residential development. The land has been consistently identified for employment generating development since 1985 and has been included in the council's strategy since 1993 and more recently in the draft LEP and the DCP as well as the contributions plan. 23 In the circumstances he concluded that the proposal would fly in the face of the orderly planning process, which has been developed for the Warriewood Valley and which is now being progressively implemented. 24 In response to the concerns of Mr Dyce, Mr C Hill contends that:: * The site is not strategically significant as a commercial office site in the locality. From a commercial development perspective it is unlikely to be developed for this purpose in the foreseeable future. * Council has failed to provide for seniors living in Pittwater and the loss of this site comprising only 1.5% of the total employment generating lands in Pittwater and 3% in the locality is not significant. * Council's proposed rezoning of about 7 hectares of industrial land in Warriewood Road for residential development is an indication that the loss of this 1.49 hectare site is not significant. * Relying on advice from the Department of Infrastructure Planning and Natural Resources ("the Department") there appears to be few if any alternate level sites of this size for SEPP 5 development in the Pittwater Local Government Area. 25 Mr C Hill did not accept that residential development in the form proposed would discourage or limit the capacity for commercial or industrial development of the surrounding lands. This is because of the separation distances across Jubilee Avenue and Ponderosa Parade and the likelihood of compatible development occurring on adjoining land to the east. 26 In all of the circumstances Mr C Hill concludes that in terms of promoting the orderly and economic use and development of land this objective would be best served by the development of the site for residential purposes of the kind here proposed. In relation to the issue of loss of employment generating land he defers to Mr Leyshon. 27 Mr M. Hill and Mr Leyshon agree that the Pittwater local government area is relatively remote from the balance of commercial activity in the Sydney region and this isolation has a negative effect on the demand for office space in Pittwater. Mr Leyshon was of the opinion that the relatively low demand for office and industrial space since 1966 together with the fact that the site does not constitute a substantial proportion of zoned employment land the use of the site as proposed would be appropriate and would not inappropriately decrease the availability of employment land in Pittwater. Mr M Hill disagreed explaining that, notwithstanding present low demand, it was vital to maintain the availability of employment lands so that Pittwater can move towards self-sufficiency in terms of employment. The retention of sufficient land for expanding employment is a significant economic issue as a result of the region's remoteness. 28 The town planners agreed that there is likely to be a rising demand for SEPP 5 type developments in Pittwater generally. In this context and taking into account the absence of any demonstrable demand for office development on the site Mr Leyshon believed that an SEPP 5 development is an example of the orderly and economic use of the site "and while there may be some potential for conflict, Warriewood is not a heavy industrial area". Mr M Hill disagreed arguing that such an analysis should examine the range of permissible uses in the existing zone. Also a more comprehensive investigation into the availability of land for this form of development needs to be carried out. Similarly an investigation is required to ensure that the loss of this land and the consequential loss of similarly zoned land will not impact on the immediate and long-term need for commercial and industrial land in Pittwater. Amenity 29 Mr C Hill was of the opinion that the proposal development would provide a resort style development of high architectural quality and landscape presentation with on-site facilities of a high order. We note the proposal has a landscaped courtyard with a health pavilion containing a gym, swimming pool, sauna, spa. There is also a central community centre containing a recreational /lounge areas, a nurse's station, shop and salon recreational facilities. Mr Hill considers the proposal will also have good accessibility to a wide range of services and facilities in the locality that is enhanced by the provision of a community bus. 30 Whilst Mr Porter believed there would be no social impact Mr Godfrey believed that the impacts from existing adjoining commercial/business land uses and future vehicular traffic would be inappropriate for the proposed SEPP 5 development and was also concerned about likely noise and odours generated by surrounding non-residential land uses. He calculated that the proposed development would have to cope with over three times the vehicular traffic than would be typically generated in a residential area. 31 Mr Porter and Miss Saltman were of the opinion that the proposal would not be isolated or lacking in security. They accepted that the area would be quiet at night and at weekends but the size of this development effectively provides its own safety and security. In response to questions about 'aging in place' Ms Saltman said the proposal would appeal to 55-70 year old people who generally are more mobile and able to access other facilities in the area, including the cycle ways, and who have their own established networks. She agreed that the location would be hardly desirable for the frailer residents or for aging in place. 32 Conversely, Mr Godfrey was of the opinion that being situated in a non-residential area the proposed development would not benefit from wider community involvement including normal evening pedestrian activity that increases surveillance and thus natural community policing. It would be likely to result in an "artificial" community of people in a limited age group with limited access to other groups of residents. As a result residents will be living in a "discreet and introspective community". 33 Mr Godfrey accepted that access to services and facilities is to be provided in accordance with the requirements of SEPP 5 but did not accept that the proposed community bus would provide the same flexibility as does public transport or where that development is within walking distance of services and facilities. Mr Porter believed that the community bus would be more flexible than public transport. Conclusions 34 As discussed above, but for SEPP 5 the proposed development would be prohibited by the LEP. The proposal is nevertheless permissible with development consent subject to the various requirements of SEPP 5, particularly the objective in s 9, the matters for consideration in s 12, and the design principles in s 25. 35 The aim of SEPP 5 in s 3(2)(a) is to set aside local planning controls that would otherwise prevent this form of development and s 5(2) provides that the policy prevails to the extent of any inconsistency between it and any other environmental planning instrument. Hence the prohibition of the proposal by the 3(e) zone should attract no weight. 36 However this does not mean that the form and nature of existing and likely future surrounding land uses taking into account applicable zonings should be disregarded. To do otherwise would be inconsistent with objective 5(a)(ii) of the Act, which is to encourage the promotion and coordination of the orderly and economic use and development of land. Indeed s 79C of the act requires that in determining a development application a consent authority is required to take into consideration, to the extent of their relevance, the provisions of environmental planning instruments and development control plans and the suitability of the site for the development. The test of suitability includes not only a consideration of the site itself but also a consideration of the site in the context of the likely future amenity and character of the relevant surrounding area. 37 We accept that the proposal would provide considerable benefits to the Pittwater community given the ageing of the population, the influx of retirees and the resultant demand for this form of housing. Being a large level site, it is physically suitable for a large-scale residential development of this type. We recognise that it is only with sites such as this, that can accommodate developments of this scale that can provide significant communal facilities on site. We also accept that for the most part the proposal is a very good design that would provide quality internal amenity. 38 Despite the fact that much of the surrounding commercial and industrial development is fairly new and not displeasing aesthetically we note the criticism that the outlook from some rooms over such developments is less than desirable but not unreasonably so. While much of the proposed development is inward looking making inappropriate outlook less of a concern, at the same time the development cannot be assessed as an isolated parcel. Indeed an important principle of SEPP 65 is 'context' and it is the surroundings of the site and its non-residential context that are unsuitable.

39 We agree with Mr Dyce and Mr Godfrey that this relatively sensitive development would be incompatible with the existing and likely future commercial and industrial land uses and their associated impacts and activity including noise and traffic. These impacts will increase over time. We accept this evidence notwithstanding that these existing land uses are generally not of an excessively high intensity today in terms of traffic and noise. We are also concerned that to approve an SEPP 5 residential development on the site could over time, inhibit the reasonable development potential of the surrounding 3(e) and the 4(b) zones. 40 Despite the fact that it is not uncommon for roads to form zoning boundaries permitting two different and juxtaposed land use forms as might result here across Jubilee Avenue and Ponderosa Parade we do not accept that this is the answer to these more fundamental concerns. Furthermore in this case the road infrastructure is in place to serve the commercial estate and we do not accept that the separation of the site from the more heavily developed commercial and industrial areas to the south of Jubilee Avenue and to the west of Ponderosa Parade by less intensive development overcomes these concerns. 41 We understand that another application under SEPP 5 for land immediately to the east in Jubilee Avenue is proposed and that land further to the east again may be the subject of an application for a motel. Clearly these developments must be considered on their merits and we note that they do not have the same direct relationship with the existing commercial/industrial uses as does this site. If they were to proceed this would change the character of this particular locality and would, to some degree, increase the acceptability of the proposal. However we cannot assume a positive outcome for those applications. 42 We recognise that approval of the proposal would probably provide a supporting precedent for the other SEPP 5 application. Whilst it is not for us to determine its outcome we can understand the strategic planning concerns that approval of both applications may have greater adverse consequences. However the loss of the land associated with these two sites would be relatively insignificant, especially bearing in mind the flexible approach adopted by the council in relation to its proposal to rezone about 7 hectares of industrial land in Warriewood Road for residential purposes. 43 Whilst it is also possible that other land might be rezoned for commercial and industrial purposes to compensate for the loss of these lands, such rezonings are by no means certain and should attract little weight until associated planning processes have been completed. However, even if this were to occur, the location of the site for housing for the aged and disabled is in our view fundamentally flawed. In saying this we make it clear that we have assessed the application on its merits in its context, not because of the zoning per se, but the specific location. We do not doubt that it would be difficult under council's current planning regime to amalgamate a site of this size within the residential zone but that does not mean that the subject site is a suitable alternative to overcome any lack of foresight and planning for appropriately located sites for integrated residential developments of this kind. At the end of the day we must assess the development application before us on the subject site. 44 The principal objective in s 9 of SEPP 5 involves the creation of opportunities for the development of housing that is located and designed so as to provide for older people who are independent active and mobile and for those who are frailer or disabled. In some ways this proposal meets this objective but is not attractive for the latter category or for aging in place. Although the size of this integrated facility can be seen to have advantages, the surrounding existing commercial/industrial uses do not provide a comfortable fit to accommodate a SEPP 5 facility and the use could lead to potential and unnecessary conflicts. 45 Finally, while we acknowledge that at present there appears to be no great demand for the development of 3(e) zoned land in this locality, this is not sufficient reason to overturn the conclusions we have reached that the site is unsuitable for the proposed development. Therefore the application fails in our assessment under s 79C(1)(c) of the Environmental Planning and Assessment Act. Orders 46 The orders of the court are therefore:

1. The appeal is dismissed.
2. Development application No NO600/03 for a multi unit residential development under State Environmental Planning Policy No 5- Housing for the Aged and Disabled at 18 Jubilee Avenue, Warriewood is determined by the refusal of development consent.

      T A Bly J S Murrell
      Commissioner of the Court Commissioner of the Court
      Ljr/rjs

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