88 Adopting and applying these principles to the present application it is not just a matter of achieving compatibility with nearby urban areas but also the rural areas. The proximity of the proposed single-storey dwellings close to the rural boundaries with no buffer is unsatisfactory in the locality.
89 Under the first principle the proposal is mostly comprised of single-storey dwellings however, there are likely adverse impacts as there are no landscaped buffers. Around the pond at 60m AHD there are some Type C dwellings that are part single-storey and part two-storey. These are distant from the boundaries of the land.
90 In respect of the second principle there is compliance as the buildings would be separated, however, these breaks could not be considered 'generous' and the landscaping, especially around the perimeter is insufficient and there is a dramatic change in character as a result.
91 In respect of the third principle, there would be extensive contouring to provide for footpaths of no greater slope than 1:14. Were the topography to remain unaltered the proposed development might have appeared smaller and would have perhaps blended in better.
92 The fifth principle could have been addressed by imposing conditions on the colour and texture of materials, were approval contemplated.
93 The Wombarra principles reinforce our conclusion that the proposal must fail as a result of inappropriate character. We are satisfied that the requirement of cl 25(a)(i) of SEPP5 that the proposal should "…contribute to an attractive residential environment with clear character and identity" is not met and the application must fail. We consider this clause would require an assessment of the proposal in the context of Cambewarra and its surrounding pastureland.
94 We also find that adequate regard has not been given to neighbourhood amenity, and that given the size of the land this is clearly possible.
95 Mr P Collins of No 16 Faulks Place, Cambewarra, told the Court that he and his wife had paid 'above average price' for their land "…so that we can enjoy a rural outlook." He stated, "…when my wife and I chose to buy land in Cambewarra we researched to find that there was no plans for the future development. Indeed the area directly over our back fence was to remain zoned Rural 1(a)." [Note: Exhibit 4, letter dated 15 September 2003].
96 Thus Mr Collins and his wife were expecting to continue to enjoy their north-facing terrace with outlook over rolling grazing land towards the distant hills.
97 On the site inspection we visited the Collins' residence and Mr Collins pointed out to us the impact of the proposal on the view from his dwelling and terrace.
98 We also had the benefit of a drawing showing an elevation of the proposal with limited depth of view, from the south, depicting the extent of development. Later the architect prepared another elevation with full depth of view [Note: Exhibit Q]. Due to the presence of a ridge in the middle distance that would exclude from that viewpoint some of the more distant proposed dwellings, the view from the Collins' residence would be of dwellings and vegetation such as to change the outlook from rolling grazing land to suburban residential albeit landscaped. Thus the proposal would appear, not unlike the residential areas of Sydney and perhaps Baulkham Hills, as Mr Shiels suggested in oral evidence.
99 Mr Clay asked Dr Lamb in cross-examination whether he had considered the change of outlook at No 16 Faulks Place, and Dr Lamb said that he had not singled it out [as a viewpoint] as there was no reason to do so. Dr Lamb agreed that [from that location] [there] was indeed a "spectacular view" and the impact on that outlook would be "…substantial and the character would be transformed." Dr Lamb also agreed that the proposed dwellings would sit proud of the brow of the hill about half way up the hill to the north of No 16 Faulks Place. Thus those houses would tend to be prominent in the view unless sufficiently screened by landscaping.
100 Dr Lamb was uncertain as to whether the proposal would block part of the range behind, he determined that the foot of the range would be obscured and there would be a canopy of trees, taller than the structures, immediately off the site in the northeastern corner. He continued, "…these may continue to be part of that view. The [proposed] buildings might have some impact on the lower part of that view."
101 Mr Craig, QC, submitted that the outlook from No 16 Faulks Place, will differ from that presently enjoyed but this is the product of SEPP5 development on land adjoining urban land. There is separation, topography and landscaping which reduce the impact and the relationship between the Collins dwelling would not be said to be inappropriate.
102 In closing, Mr Craig, QC, submitted that if the Court considered the outlook from No 16 Faulks Place to be sufficiently adversely impacted upon by the development, the applicant would be willing to submit to a condition requiring some of the dwellings to the north to be removed to open up the view.
103 Mr Clay submitted that the Cambewarra area presently has a rural character and was not 'arcadian' as suggested by Prof Toon. He submitted that SEPP5 is not carte blanche for creating residential subdivision in a rural context. That planning controls [of SEPP5] make [the proposal] permissible, however, he submitted, one does not ignore the strategic and physical context of the proposal and a proper and thorough analysis assessment is demanded by both SEPP5 and s 79C [of the Act] and this will lead to the conclusion that the appeal should be dismissed.
104 Although it is expected that an SEPP5 development would be of a different character to rolling grazing land the proposal does little to soften and ameliorate its impact. The planting will assist in softening the outlook over time but we are satisfied that it would still appear urban.
105 We are satisfied under cl 25(a)(iv) of SEPP5 that the proposal would not maintain reasonable neighbour amenity and appropriate residential character, and that the setbacks, are not such as to ameliorate that visual impact in respect of No 16 Faulks Place. We are not able to condition the application in order to ameliorate the impact on the outlook from No 16 Faulks Place. As a result the application must fail.
106 In addition, we consider that the outlook from, and neighbourhood amenity enjoyed by, residents occupying some of the existing dwellings in Nooramunga Avenue to the east of the land similarly would be adversely affected. Those dwellings that are at a similar level to proposed dwellings are likely to be most affected. Although no common property is proposed along the eastern boundary with the Nooramunga Avenue properties the landscaping plan shows the courtyards of these dwellings heavily landscaped. To the south on the eastern boundary there is a greater setback and that is shown heavily planted where a greater separation between the existing and proposed dwellings is proposed the visual impacts would tend to be ameliorated.
107 Also, we understand the concern of Ms C C M Cook of No 230A Main Road, Cambewarra, for the outlook from her 2.24ha (6 Ac) property to the west of the proposal. The proposal, she said, would be "…completely in my face." From her dwelling that is on low-lying land to the southwest of the proposal most of the proposed dwellings would be in view with some perhaps being screened by landscaping. No western side buffer zone of landscaping is proposed and the dwellings interspersed with landscaping would be likely to be visible through the trees once they have been established. Also in full view would be the cul-de-sac its excavation and to the east of the far end of the cul-de-sac further excavation. This might be less than attractive in outlook until built upon.
108 Ms Cook, also represented the owners of Illawarra Alpacas, Dr I and Mrs H Davidson who were overseas at the time of the site inspection and expressed concern for dog attack on the Alpacas. Ms Cook stated, "…with houses come dogs."
109 Dr Davidson who wrote to the Court on 3 May 2007, [Note: Exhibit 4], explained the "…very serious and committed nature" of the Alpaca operation. He considered, "…the efficient conduct of our rural enterprise will be seriously compromised by the arbitrary conversion of rural land to intensive urban use." He expressed concern for effluent draining from the densely populated hillside into water bodies on which his stock depend; increased threat of dog attacks from untrained and unconstrained family pets living on our immediate boundary and hunting in packs on our rural land; of objections by [new] residents to the smell, noise, and chemical dust that is a normal and accepted part of rural enterprise; and from incursions onto our land by children. Dr Davidson pointed to three separately documented cases of dog attacks on stock in southern NSW and northern Victoria two weeks before he wrote to the Court.
110 Mr Craig, QC, submitted in regard to the question of possible dog attacks, his client would be willing to comply with a condition requiring 'no dogs' be permitted within the development. We are concerned that this prohibition might not be practical and as a result be difficult to police. Dogs and humans have a long history of living together, and one that is not easy to rewrite. The impacts of rural/ residential interface, particularly as there is no buffer between the two uses is of concern.
111 'Good design' as required under SEPP5 would suggest that in order to avoid the conflict between rural and urban uses, an adequate buffer, of significant width, along the western side should be provided. Presently the subject land performs that function. As proposed the rear courtyards of the dwellings would directly abut the rural land and all the consequences highlighted by Dr Davidson are likely.
Access
112 The key difference between the experts in respect of access was whether the development complied with cl 12(2A) of SEPP5, which provides:
The consent authority must not grant consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:
(a) home delivered meals, and
(b) personal care and home nursing, and
(c) assistance with house work.
113 This issue encompasses whether the proposal meets the aim in cl 3(1)(b) of SEPP5 to encourage the provision of housing that will:
make efficient use of existing infrastructure and services.
114 Clause 3(2)(b) of SEPP5 provided this aim will be achieved by:
ensuring that applicants and councils take into consideration the level of additional demand for support services for older people or people with a disability in the council's area to be generated by the development when preparing and assessing development applications that are affected by this Policy,
115 The key disagreement between the experts can be summarised as Dr Stubbs considered the proposal would place an unacceptable demand on existing services, which she considered were already stretched, and that the proposal did not adequately demonstrate that the increased demand for services would be met by either the public or private sector.
116 Messrs Porter and Burgess considered that the existing services were adequate and that increased demand would be met by increased funding for public services and by the provision of services through the management of the retirement village on a user pays basis as outlined in the plan of management.
117 Dr Stubbs and Mr Porter agreed that the average entry age would be late 60s early 70s. Mr Burgess considered it would be closer to 55. At entry people would generally be fit and place little demand on services, however, this demand would increase as people aged or circumstances changed.
118 The experts agreed that the facility would generate an increase in population of 339 people of which would represent a 26% increase in the existing population of Cambewarra. This increase might be slightly less given that during the hearing the number of dwellings was reduced by five to 221.
119 The increase in population will comprise of about 200 people from within the Nowra/Bombaderry area, 85 people that move into the Nowra area from within the Shoalhaven Local Government Area, (LGA) and about 113 people that in migration from outside the LGA. The population most likely to place demands on services would be the latter, although migration within the LGA would also increase demand. These predictions would be slightly smaller due to the reduction in the number of dwellings but this does not alter the conclusions of the experts.
120 The different position of the experts as to whether the development provided reasonable access to services is explained in the joint statements between Mr Burgess and Dr Stubbs (Exhibit 7) and the joint statement between Mr Porter and Dr Stubbs (Exhibit 6).
121 Mr Burgess noted that any operation must be based on demand. He considered that the village operator should adopt a 'flexible' approach to service delivery, and that 'hardwiring' services would not deliver value to residents (who may be required to pay for services they do not require).
122 Dr Stubbs considered that a development of the size, location and nature proposed service arrangements should be 'locked in' to the management plan to ensure that there is reasonable access to the service required. She noted that it would be highly desirable for a development of this size and nature to have entered into a 'partnership' with a bone fide service provider, and/ or to contain an aged care facility, which would provide the on-site infrastructure from which to provide services required by cl 12(2A) of SEPP5.
123 Mr Burgess considered that a properly conditioned management plan carried more weight than a 'partnership', which he stated, was not enforceable.
124 Dr Stubbs was concerned that the proposed 'flexible' approach to service delivery does not guarantee that services will be available to those residents who will need them (now or in the future), or that the development would not be a 'drain' on private and Health and Community Care (HACC) services.
125 Mr Burgess did not consider that the proposal would be a drain on HACC services for the following reasons:
· Firstly, the development is staged and will be built over 7 to 10 years, which means any changes will be incremental.
· Secondly, retirement villages ease the burden on local HACC services because home maintenance and transport is provided within the village levies.
· Thirdly, people who migrate to areas tend to be more active, fitter people as those in need of services tend to remain close to their existing service networks.
126 Mr Burgess considered that there would be plenty of time for local providers of HACCs services to apply for increased funding to meet increased demand. Further, the management plan requires that people must have access to required services, which would be provided privately by either staff within the facility or by local suppliers, on a user pays basis.
127 Mr Porter agreed with Mr Burgess. He did not consider that the existing services to be stretched and stated that the public or private sector would provide increase in services, if and when needed, as required by the management plan.
128 These opinions need to be considered within the context of the existing and likely future demand for services. Both Dr Stubbs and Mr Porter undertook surveys of existing services in the area and provided estimates of existing and future demand. Mr Burgess also provided data on other self-care facilities. Without providing the detail of these assessments we prefer the evidence of Dr Stubbs and agree with her two key conclusions that the Shoalhaven LGA has an older age profile than NSW generally and is expected to age at a more rapid rate and has service deficits over time greater than the State average.
129 We accept that the proposal is unlikely to initially impact on the demand for services however, over time this will occur. 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.
130 In considering similar issues and evidence in Punnett and Associates v Shoalhaven City Council [2004] NSWLEC 656 Brown C stated that:
While valid criticism can be levelled at a public funding system that does not respond quickly to demand, it is nonetheless the system in operation …it is unreasonable that prospective developers of housing for older people and people with a disability should be held accountable for a funding system outside their control.
131 The application that was considered by Brown C was much smaller than the one currently before the Court; being for only 37 self-care dwellings, which he concluded, would not place an unacceptable impact on services. However, the size of the current application and the extent of in-migration from both within the Shoalhaven LGA and outside the area is likely to increase the demand for services, not initially but in the longer term. 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.
132 The proposal is likely to generate a demand for these services from the private sector. We agree with Dr Stubbs that the 'flexible' arrangement in the management plan, which proposes that the manager, on a user pays basis, will facilitate services, and that supply will respond to demand does not provide sufficient detail or certainty to satisfy the criteria of reasonable access. This may be acceptable in a smaller facility but for one of this size there must be a degree of certainty as to what the arrangement are to be. In particular, we note that the management plan states services will be provided by local providers or by staff employed by the retirement village. However, in the latter instance, the proposal does not provide facilities to undertake services such as food preparation, laundry, and storage of cleaning or maintenance items or staff accommodation. In addition, the proposed kiosk is very small and does not provide any storage space and will only be available in Stage 2.1 of the development.
133 We do not consider it sufficient that a system that relies on demand being met on a user pays basis is adequate, particularly as it cannot be assumed that supply will automatically increase in response to demand, the user may not have choice in the provider of the service or bargaining power to negotiate reasonable price or delivery. If the provision of services were simply to be left to the market there would be no need for it to be addressed by SEPP5. This is not the case. The requirements of cl 12(2A), particularly when read with the aims of the policy, are specific.
134 The Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 examined the purpose of SEPP5 and the provision of adequate services. It dealt with an earlier version of SEPP5 and different wording of the provision, which specifically required satisfaction that specific support services would be provided within a reasonable time frame and are or will be able to meet the needs of the residents at a reasonable cost. Although not explicit in cl 12(2A) we consider that these concepts are inherent in a consideration of 'reasonable access'. The Court of Appeal held that:
(2) it is not sufficient for the necessary satisfaction to be based on an assumption that in a privately developed and owned hostel the owners will so manage their affairs as to arrange for the provision of the relevant facilities within a reasonable time and at a proper level and at a reasonable cost to them.
(3) it is not sufficient for the necessary satisfaction to be based on the imposition of conditions of consent.
135 Clause 12(2A) of SEPP5 relies on the provision of services by public agencies or through a condition of consent requiring compliance with a management plan that places an obligation on management to arrange for services to be provided either publicly or privately on a user pays basis. Little detail is provided as to these arrangements and we find that for a development of this size and location, the written evidence does not provide us with the satisfaction required under cl 12(2A) of SEPP5 and in satisfaction of the aims of the policy.
136 In relation to other access issues the experts agreed that there was technical compliance with SEPP5, although Dr Stubbs and Mr Shiels maintained concerns about the adequacy of the bus service and pedestrians access particularly to Cambewarra.
137 Under cl 12(2)(b) of SEPP5 where the facilities and services referred to in subcl 1 are located at a distance of more than 400m from the site of the proposal, and where a transport service is available at a distance of not more than 400m from the site and would provide a service once a day from Monday to Friday inclusive, then the access would comply.
138 Other than the general store and post office there is no other retail or commercial services in Cambewarra. The post office has no on-line banking facilities. There are no doctors in Cambewarra. The nearest general practice is at North Nowra. There are no community or recreational facilities in Cambewarra Village other than a school, church, and school of arts, tennis courts and limited public open space. There is also no chemist in the immediate vicinity of Cambewarra.
139 The experts agreed that most of the services in cl 12(1) of SEPP5 were not available in Cambewarra but were available in North Nowra and Nowra. For all stages of the development it is proposed to provide an eleven-seat private bus to link with these services in Nowra and North Nowra. As currently proposed in the management plan the bus would operate once each weekday. Dr Stubbs considered the size and proposed operation of the bus to be inadequate for a development of this size and that residents unable to drive would need to rely on taxis or other residents for individual transport to medical appointments and the like.
140 Mr Burgess stated that the arrangements needed to be 'flexible' and that the size and frequency of services could be increased in response to demand and that the management plan could be amended to reflect this. We accept that a private bus service can meet the requirement of SEPP5 however; the details of the service as currently explained in the management plan do not provide sufficient certainty. In particular, the management plan is unclear as to the whether the obligation to provide the bus is "…subject to residents meeting all costs associated with provision of the bus service either through the village budget or on a user pays basis." We consider that to satisfy cl 12(2)(b) of SEPP5 the obligation to provide a village bus should be explicit. If the majority of residents drive, the cost of providing a bus for a few residents on a user pays basis would be prohibitively expensive. We consider this to be essential as we are not satisfied that the public bus will access the facility until such time as there is sufficient demand.
141 Mr Craig, QC, submits that the Kennedy's bus service Nos 809 and 810, Moss Vale - Kangaroo Valley - Cambewarra - Nowra will service the land under the existing timetable. Also, if more people were to migrate to the retirement village the level of service would be reviewed, hopefully upward.
142 A letter from Mr J Kennedy dated 25 July 2003, (Exhibit G, Appendix C) stated that the development would be serviced in the later stages. It states the service, "…involves access via Main Road and it has been designed to allow a 12.5m bus to access the principal road around the site." [Court's emphasis added]. In the early stages of the proposal the bus would need to enter the land travel for around 900m turn at the cul-de-sac and return along the same route. The existing route through Cambewarra Village is a loop as shown on p 24 of Mr Relf's report in Exhibit G. Usually loop roads are preferred to ensure there is no need to back the bus in a turn.
143 The bus service is further clarified in the letter dated 21 July 2004 from Mr J Kennedy that states, [Note: Exhibit CC]:
I have examined the Site Plans of the Proposed SEPP5 Development for Main Street, Cambewarra, Project Number 03090, DA 001B, dated 30 July 2003. The plans show that when the development is complete, there are bus stops within 400m of any dwelling on the site. The owners have also informed me the geometry of the main loop road has been designed to allow for a 12.5 metre bus to circulate through the site. Prior to the loop road being completed a temporary turning circle will be provided.
Your development proposal can be easily accommodated within current passenger transport services, approval would need to be sought from the Ministry of Transport in order to adjust our route to include a deviation into this new estate. If development… is approved we would be happy to extend our current service arrangements. Such approval will not incur any difficulty, as it will be providing additional [routes] to support [our] growing community areas. There would be no additional cost to the Government under current contract arrangements, as we provide services to Main Road Cambewarra and the proposed entrance location to the development and would not cause any inconvenience to passengers.
144 Although Kennedy's bus and coach service serves Main Road it does so further to the east of the subject land and accessing the retirement village would mean an additional loop to the west of between 2km and 3km. It does seem that the proposed Kennedy's bus service would be provided only when the last stage of the development is completed and demand had grown. This is made clear when one understands that the loop road referred to above would only be provided when all stages are developed. When the last stage of the development is completed the bus would be required travel from Main Road along the cul-de-sac to its head, turn right and follow the loop road to the south running parallel to the eastern boundary of the land, then turn to the west and enter the cul-de-sac near the pond at level 60m AHD. Three bus stops are proposed within the development. One stop is proposed near the community centre, one near the cul-de-sac head, and another on the loop road all within a maximum distance of around 300m of the furthest dwelling. By this route, the 'public' bus would need only to retrace its tracks for a distance of around 170m to link back onto Main Road. This loop road is only available once all stages up to Stage 3.4 are complete and before then the bus would need to turn at the cul-de-sac head and retrace its route to Main Road.
145 While the later Kennedy letter states that the service will be provided to the development it would be subject to further approval of the Ministry of Transport. We consider there is some doubt surrounding this proposal. It is unlikely that the public bus would divert its services some 2km or more, return off Main Road to service about 35 dwellings in Stage 1.1, especially if a high proportion of residents travel by private transport. The aim of SEPP5 is to ensure a transport service is available from the start, and even it only required by one person or a few, initially, it should be available.
146 Mr Relf states:
With respect to the bus service along Main Road, Cambewarra, it is apparent that the services stops at nearby Cambewarra Village at 8.00am, 8.30am/ 8.55am and 10.33am and travels to Nowra commercial precinct within 400 metres of shops and services as required by SEPP5, clause 12(2)(b)… The afternoon Route 809 services include 2.15pm, 3.40pm/ 3.25pm at nearby Cambewarra Village. The timetable analysis shows that the 2 round services daily Monday to Friday will satisfy the requirements of SEPP5 clause 12(2)(b)(iii) which specifies a minimum of one round trip daily during daytime hours.
147 Until such time as the bus enters the retirement village people will need to board it at bus stops on Main Road or in Cambewarra Village. What Mr Relf apparently neglects in his analysis is how do people get to these bus stops and how far are they required to travel. Dr Stubbs points out that the present footpaths are 'problematic' connecting the proposed retirement village to Cambewarra Village and the distance travelled would be in excess of 400m. Dr Stubbs indicated that the 'public' bus service is between 0.65 km and 1.6 km from dwellings in the proposal and other experts for the applicant have indicated that the 'public' bus will not be rerouted through the development until later stages, and will not be relied upon to achieve compliance. If most people prefer to use their cars in the early stages of the development the demand for the public bus would not be great and adding around 2km or more to the route may not be practicable or profitable.
148 After Mr Shiels offered his support for the provision of a footpath along Main Road linking the retirement village with Cambewarra Mr Craig, QC, submitted that the applicant was willing to provide a 1.5m wide footpath from the entrance to the village to Goorama Drive, and then to widen the footpath to Cambewarra Village.
149 Also the applicant was willing to provide a similar footpath from the cul-de-sac via a right of way to Nooramunga Avenue and then to Cambewarra Village. However, this route would not be accessible to all residents due to the steep grades in the right of way.
150 We accept that with the footpaths in place there would be access to Cambewarra village along footpaths from the retirement village, however, the distances from a random selection of dwellings to the general store (Exhibit 22) would be in the order of 1.2 to 1.5km. The provision of a Kennedy's 'public' bus service within 400m of each dwelling is problematic and probably unlikely in the early stages. If the 'public' service is not available reliance is placed on the eleven-seat village bus and from the written evidence provided it is questionable if that is sufficient to satisfy the requirements of SEPP5.
Other issues
Social impact
151 Dr Stubbs considered that the addition of around 340 people aged around 70 years within the existing Cambewarra community of around 1000 people would have a significant impact on the demographic mix and social fabric. Dr Stubbs pointed to the significant resident opposition to the proposal.
152 Mr Porter saw Cambewarra as being but part of the wider Nowra urban functional area and as such would not disturb the balance. We agree that while this is not specifically a matter to be addressed under SEPP5, it is of concern.
153 Dr Allin, in his own right and on behalf of other members of his practice, gave some support for the position of Dr Stubbs on the site inspection. He gave evidence that the medical infrastructure in this [Nowra/ Bombaderry] area cannot support the extra demand on services likely to take place as a result of the proposal. He stated:
Simply with regards to aged care and people with disabilities and the requirements of allied health, our practice has 12 doctors working at it, most of them are part-time. On any one day we have about 6 doctors working in the practice, and these doctors are usually fully booked quite well ahead.
We do not believe that we can actually service this development.
Traffic
154 There was a difference of opinion between Messrs Shiels and Logan on the traffic implications of the proposal. Mr Shiels considered that the proposal would result in adverse traffic impacts within the local road system, unless improvements are made to the road network.
155 Mr Logan considered that while there are deficiencies in the existing road system the traffic generation from the proposal is minor and will not have a significant adverse traffic impact on the local road system.
156 These areas of disagreement were reduced by the applicant's agreement to provide a footpath along Main Road and the intersection into development off Main Road as required by Council.
157 The only works, which remained in dispute, were the need to widen Main Road and the need to upgrade the Moss Vale and Main Road intersection. We accept Mr Logan's evidence that any need to upgrade these facilities is not generated solely by this development and it would therefore be unreasonable to require this development to rectify existing deficiencies. Nonetheless the proposal will increase traffic and a proportional contribution would be appropriate. As the type of proposal is not envisaged under the planning controls for the area and there appears to be no relevant s94 Plan a developer agreement or other mechanism may be appropriate.
158 For the above reasons the application must fail.
Orders
159 Our orders are:
- The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.