G M Adams & Associates Pty Ltd v Hornsby Shire Council

Land and Environment Court (NSW)|2002-04-30|Before: Pearlman J, Talbot J

The applicant and the council have approached the Court seeking the making of orders by consent. After consideration of this matter I agree to make orders by consent. My reasons are as follows.

The proposal is for a development under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5") at 470 Pennant Hills Road, Pennant Hills. The applicant proposes to construct a development containing 21 units involving the existing heritage building, called "Limona", and the erection of additional buildings.

The Court's practice in relation to consent orders is set out in Practice Direction 1993 cl 9. It relevantly provides in sub-cl (b) as follows: [A]ny applications for consent orders … will be listed before the Duty Judge for approval. The parties will be required to present such evidence as is necessary to allow the Duty Judge to determine whether it is appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account.

In this case a number of resident objectors gave oral evidence. They were Mrs Helen Wakeman who lives at 1 Thompson Close, Mr Ken Davidson who lives at 11 Thompson Close, Mrs Lynette Mansell who lives at 14 Thompson Close, Mr William Bollard who lives at 5 Thompson Close, Mr Robert Tatrai who lives at 7 Thompson Close and Mr Brian Ash who is the representative of the Pennant Hills District Civic Trust. Not only did those people give oral evidence, but in addition a number of submissions and objections made by residents were tendered to the Court. They have been read.

What then is the approach that the Court should take? The first matter to note is that these are consent orders. That means, as I have already said, that the parties to this appeal have come to an agreement. The council has brought no evidence and has no objection to the proposed development.

Secondly, the resident objectors are not parties to the merit appeal in this Court. They have given evidence because the Court is anxious in the discharge of its duties to hear the concerns of residents, but they have no rights as parties. They give evidence only by leave of the Court.

A third significant matter is that the council raises no objection in circumstances where it has, on previous occasions, raised major objections to a SEPP 5 development on the site and there have been previous appeals.

The next matter to consider is SEPP 5 itself. It contains prescriptive standards and or requirements that must be met by the applicant before other matters can be considered. In this case they have been met. As was pointed out by Talbot J in his decision in Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276, cl 12(1) of SEPP 5 constrains the grant of consent unless the minimum criteria are satisfied. His Honour regarded that as a preliminary hurdle, which the applicant was required to bridge or overcome. In this case, the applicant has jumped over that preliminary hurdle.

As to the remaining matters, SEPP 5 contains provisions which, if satisfied, cannot be grounds for refusal. Indeed there are matters generally to be considered about the impact of a proposed development as required by s 79C of the Environmental Planning and Assessment Act 1979. But these matters do not require either absolute compliance or absolute absence of impact. What is required is a balancing exercise, that is, a balance between the site with no development and the site with the proposed development.

The consent authority (and the Court on appeal) is concerned in that balancing exercise to consider whether there is unacceptable impact, that is, impact which would justify the refusal of consent. In this case, that is an impact which would justify the refusal of the making of consent orders.

The next matter to consider is the question of the weight to be attributed to the evidence. The Court is entitled to place and does place significant weight on the views of experts. Mrs Wakeman gave evidence yesterday to the effect that the residents who live in Thompson Close know Thompson Close better than anyone else. They live there, they have all lived there for a considerable number of years, they know its character, they know the way it works, they know the sort of people who live there, they know the way it operates. That is all true and I accept it. But against that I have evidence from people who have special knowledge and qualifications in various fields such as accessibility for people with a disability or traffic engineering. Their evidence is based on a rigorous assessment derived from their qualifications and specialised knowledge. In this case that is an important point to make because there is a lot of expert evidence that supports the proposed development. There is a lot of evidence from the residents which is against the proposed development, but that is lay evidence. Whilst I am very cognisant of the sincere and heartfelt concerns of the residents, those concerns do not attract the same weight as the opinions of the experts.

Against that background I would like to deal specifically with four items. The first is heritage impact. The proposal involves an adaptive reuse of Limona, a heritage building. The proposal, so far as concerns heritage aspects, has been approved by Mr Brady, an architect and heritage consultant called by the applicant, Mr Staas, a heritage consultant called by the council, and by the council's own heritage committee. Furthermore I now have a suggested condition of consent which will oblige the applicant to retain the chimney and the cellar of Limona, both of which were of concern to the residents. It seems to me therefore that heritage impact would not justify a refusal of consent orders.

The second matter is the concern that the proposed development is out of character, has amenity impacts and an impact on the streetscape. The particular concern here is that of Mrs Mansell. In her house at 14 Thompson Close, she is the person most likely to be seriously affected. But the impact on her amenity is reduced by three matters. First, setbacks have been provided in the relevant design. Secondly, a unit has been deleted with the effect that that part of the development closest to Mrs Mansell's property will be single storey, and thirdly Mr Pittendrigh has provided landscaping proposals which will, in my opinion, mitigate the impact upon her. I do not think therefore that that impact is sufficient to justify a refusal of a consent order.

The streetscape is a matter which was raised by the objectors and mentioned again this morning by Mr Tatrai as we walked down Thompson Close on the site inspection. The streetscape is to be altered by the proposed development in two major respects. One is that the cul-de-sac at the end of Thompson Close is to be completed, that is, it is to be widened to a circle. The other is that the topography calls for a different treatment. The fact is that the site rises above Thompson Close and what is proposed in the landscaping treatment is a series of landscaped terraces at that point. It seems to me that none of the matters of character, streetscape or amenity are such as to warrant a refusal of consent orders.

The next matter is parking. Mr Bollard provided a graphic overhead which showed his concern about traffic generation and in particular parking. He expressed the residents' view that there will be congestion in Thompson Close, and that there will be considerable parking difficulties from an overflow of users of the proposed development. He demonstrated that concern with clarity. As against that, however, I have expert evidence. Mr Hallam, a traffic engineer of considerable expertise, has signified that he has no concerns for traffic generation or parking. That opinion has been corroborated by the council's traffic engineer. Mr Bollard mentioned a conversation between some residents and some council officers, apparently expressing some concern on behalf of the council about traffic impact. There was no evidence of that conversation. The only evidence before the Court is the concurrence of the council in consent orders and the express approval of the council's traffic engineer. Again there is no justification for a refusal of consent orders on that ground.

The next matter is access. Mr Ash was concerned with the safety and quality of access. He set out to demonstrate that the accessibility of the proposed development was neither convenient, obvious nor safe, to use the words of SEPP 5. However, the expert evidence is to the contrary. Both Mr Relf, called by the applicant and Mr Beardsmore, called by the council, are in agreement that matters of accessibility satisfy the requirements of SEPP 5. I place particular weight on the fact that Mr Beardsmore gave his approval to the design of the development as currently proposed. It was his concern about accessibility which was the basis of the last refusal of a development application for the site. It is a significant fact in my opinion that Mr Beardsmore has now come to the conclusion that he has.

For all these reasons, therefore, I consider that it is appropriate to make orders by consent which should be subject to conditions. The council, as is required, filed without prejudice draft conditions which it would impose if consent were to be granted. Those conditions are lengthy and detailed. They are accepted, with one exception, by the applicant. They will be imposed.

The exception was condition 53 which talked, in particular, about the works to be carried out in the laneway that leads from Thompson Close to Pennant Hills Road by the side of the site. The council has now signified that it concurs with the applicant's objection to sub-cl (g) of that condition. It will be deleted.

Another matter raised by the applicant in relation to condition 53 is that the works that it requires, which are considerable, should be carried out prior to the occupation certificate being issued. That amendment will be adopted.

The applicant has also offered two additional conditions. First, in relation to the retention of the original chimneys and the use of the cellar in Limona. I will impose that condition. Secondly in relation to the setback of two metres of building E from the western boundary, I will impose that condition.

(2) By consent I make the following order: Development application for 21 units in a SEPP 5 residential development at 470 - 472 Pennant Hills Road, Pennant Hills is granted development consent subject to the conditions contained in exhibit H and in accordance with final plans relied upon by the applicant contained in exhibit 6.

(3) The exhibits may be returned except exhibits H and 6.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : G M Adams & Associates Pty Ltd v Hornsby Shire Council [2002] NSWLEC 89 APPLICANT G M Adams & Associates Pty Ltd PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11060 of 2001 CORAM: Pearlman J KEY ISSUES: Development Application :- SEPP 5 residential development - consent orders - concerns of residents - heritage impact - streetscape impact - parking - access Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Practice Direction 1993 State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability CASES CITED: Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276 DATES OF HEARING: 19/04/02, 29/04/02, 30/04/02 EX TEMPORE JUDGMENT DATE : 04/30/2002

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