Hawkins & Anor v Mosman Municipal Council

JUDGMENT:

• 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10592 of 2003

23 October 2003 GRAHAME HAWKINS AND ELIZABETH HAWKINS Applicants v MOSMAN MUNICIPAL COUNCIL Respondent JUDGMENT HIS HONOUR: 1 This is an appeal against the deemed refusal of a development application for the demolition of an existing dwelling at No. 10 Burton Street Mosman and the erection of three new dwellings under State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability ("SEPP No. 5"). The application also proposes the strata subdivision of the development when completed. 2 In my opinion, this application should not be approved. Notwithstanding that foot-path works are proposed within the adjoining public roads, the evidence does not satisfy me that the development has or will have convenient and safe access to public transport services and local facilities: see cll 12(1), 12(2) and 25(f) of SEPP No. 5. 3 It is clear that, as a consequence, this site is an inappropriate location for a development intended to accommodate older people or people with a disability. The nearest bus stop to the site is about 325 metres from the two dwellings which are proposed to front Burton Street. The third building is proposed to front Julian Street at the rear and it is about 375 metres from the nearest bus stop. The real difficulty with the access is the topography. The path of travel from the site to public transport services is relatively steep in sections and the whole of the route is all uphill. The evidence satisfies me that the access route is presently unsuitable for use by persons in wheelchairs. 4 I should refer briefly to the evidence. The council's executive town planner, Mr C S R McFadzean who appears to be a relatively fit and able bodied thirty year old, undertook a practical field test in a manual wheelchair over the proposed route. The trip from the site to the bus stop took him thirty-seven and a half minutes and he experienced difficulty in completing it. The return journey also proved to be difficult, due mainly to the steepness of sections of the route. 5 Mr D Anderton, a disabled person, also undertook the route in his manual wheelchair. The outward journey took him twenty-six minutes, also with difficulty. The principal difficulty related to the steepness of the route in Burton Street and in two sections in Congewoi Road. He found it hard going with the need to stop frequently. There will, in his opinion, be a particular difficulty in wet weather when there is a tendency for the hands to slip, making pushing up a slope more difficult. He said that even with the proposed footpath improvements he did not think he would attempt it in wet weather. 6 On the return journey, which is all downhill, Mr Anderton said that he was not totally in control in Burton Street. He could not bring his wheelchair to a complete halt and had to pull over into gardens at the side, otherwise he would pick up too much speed. Again, in the Congewoi Road sections he found that he had to pull off the footpath onto the grass as he was getting too fast. The proposed provision of rest areas at the side of the footpath would not be of much use to him because he would find it difficult to pull his wheelchair to a stop within them on the downhill journey. 7 Ms K O'Donnell, an access consultant, who gave evidence for the council, also conducted a wheelchair trial along the route from the site to the nearest bus stop. She also appears to be an able bodied person. She said: "Going to the bus stop was slow and tiring. I was completely exhausted at the end of the trial. My hands were blistered and my arms felt like jelly." 8 The journey to the bus stop took her forty-five minutes. The return journey took fifteen minutes. As to the return journey she stated: "I found going downhill frightening as the steepness of the slope made stopping difficult and the wheels skidded for some of the distance." 9 The applicants proposed to carry out footpath improvements within the road reserves so as to make the access route more wheelchair friendly, including the provision of ten rest stops. The need to provide ten rest stops reinforces, in my view, the unsuitability of the access route and consequently the unsuitability of the location for this type of development. In some sections, additional foot paving is proposed which, in the opinion of Mr McFadzean, would add to visual clutter. Generally, however, there will be no substantial change in the gradient of the footpath in Burton Street, which I understand will remain between a slope of 1 in 10 and 1 in 12. There will also be a 1 in 11 section in Congewoi Road. 10 Mr McFadzean and Mr Anderton were of the opinion that the works proposed by the applicants would not resolve all the difficulties that they experienced in travelling the route. They would not resolve the difficulties described by Mr Anderton in wet weather. It would still be a relatively slow journey from the site to the bus stop. Mr Anderton thought it would still take him about twenty minutes. As I have previously noted, the journey to the bus stop is all uphill. 11 Mr Anderton, whose views I accept, said that the proposed works would be of little use to him; and on the return journey he may still have to run off the path and onto the grass in the steeper sections. He noted that there is no proposal to alter the gradient of the steep sections in Burton Street. There would still be the difficulties in wet weather which he described. It would be difficult in carrying anything on the back of the wheelchair as it would tend to tip over backwards when going uphill. Anything carried on his lap would also tend to slide off if entering rest areas. He also thought, and I agree with him, that twenty minutes was rather a long journey for travelling from the site to the bus stop. 12 Mr T G Beardsmore, an architect and disability access consultant who gave evidence for the council, believes that notwithstanding the works proposed in the footpath, the gradient along Burton Street is so steep and continues for such a distance that there is little that can be done to assist. Landings complying with the appropriate guidelines in the relevant Australian standard on the path of travel with seating at each landing would assist but Mr Beardsmore believes the site is not suitable for development of this kind, especially for older people with ambulatory and respiratory ailments due to the excessively long lengths of steep footpath in both Burton Street and Congewoi Street. That is to say, even if the works meet the appropriate guidelines, there would still not be a safe and convenient access from the site to the bus stop. 13 Mr M S Relf, a disability access consultant who gave evidence for the applicants, relies in his report on the availability of the Mosman Community Transport Service to provide suitable, convenient and safe access to local facilities. I do not agree. Mr McFadzean said that it was inappropriate to have a development which has to rely on community transport services which would impose an increased burden on the resources of the local council and on the community. Importantly, in the present case, the Mosman Community Transport Service is only available on a limited basis. As I understood the evidence, it is available for only one trip a week and that is only on Mondays, for shopping. For other transport needs the community bus has to be booked and the demand is such that bookings must be made some months in advance. 14 Developments which are designed to accommodate older people or people with a disability should be so located that they have convenient, obvious and safe pedestrian and wheelchair links to local facilities or to public transport services as required by cll 12(1), 12(2) and 25(f) of SEPP No. 5. Sometimes this can be achieved if the development itself incorporates an "in house" transport service which is then available to occupants of the development at all times. Such a facility, however, is not proposed in the present case. 15 Reliance was placed also, by the applicants, on compliance with the Guidelines for Councils and Applicants in the Application of SEPP No. 5, issued by the then Department of Urban Affairs and Planning. There is, as I understand it, a dispute between the parties as to whether the proposed means of access fully complies with these guidelines. The guidelines have no statutory force or status. They are merely advisory - a guide. A failure to comply with the guidelines does not necessarily mean that the application must fail. Likewise, compliance with the numerical recommendations contained in the guidelines is not necessarily conclusive in establishing that the access is both safe and convenient. The Court must take account of the evidence placed before it. 16 The evidence in the present case shows that the path of travel, both now and with the footpath improvements proposed, is and will remain unsatisfactory. The evidence of Mr Anderton, Mr McFadzean and Ms O'Donnell in particular demonstrates that the means of access is now, and after development will remain, unsatisfactory. The estimated time taken, and which will be taken, to travel the route, being a minimum of twenty minutes seems to me to be a long time for an elderly or disabled person to be either walking or pushing a wheelchair. 17 The unsatisfactory and unsuitable means of access results in a further conclusion that the site is in an inappropriate location for a development intended for older people or people with a disability. I have not canvassed all the detailed and somewhat technical evidence relating to the suitability of the path of travel or its compliance with the relevant Australian standard. The judicial duty to give reasons does not call for reference to all the evidence in the case or for resolution of all detailed conflicts of fact: see Athens v Randwick City Council [2002] NSWCA 83 at [16]. The basis of the decision in this case can be and has been sufficiently stated without further elaboration. The fact that the site is in an inappropriate location for a development intended for elderly and disabled persons means that it is not necessary to decide the other issues in the appeal. It is sufficient merely to note that there were two other merit issues in dispute and to comment briefly upon them. 18 The first related to the need to remove a Eucalyptus saligna (or Sydney Blue Gum tree) to accommodate the proposed rear dwelling. There is no doubt that the tree contributes to the character of the locality, although it is not endemic to the area. The tree is not listed in the council's register of significant trees. I accept the opinion of Mr P A Le Bas, the town planner who gave evidence for the applicants, that the tree is set amongst others and is not of such significance that its retention is essential. My acceptance of this opinion is reinforced by a view taken of the site and its surrounding area by me in the presence of representatives of the parties. In any event, a condition could, if necessary, have been imposed requiring the planting of a replacement tree on the land. 19 The other issue was whether the proposed building satisfied the design controls of the Mosman Residential Development Control Plan as to consistency with the predominant neighbourhood character for pitched roofing. The proposed development has a flat roof. A pitched roof, however, would have a greater impact upon views from the adjoining property at No. 8 Burton Street. 20 The development control plan sets out the existing character elements of this area and states, "gabled roofs are particularly characteristic." However, the development control plan describes the future character objectives of the area as including:"maintain the architectural diversity of the area." The proposed development is not inconsistent with that stated future character objective. 21 On the view of the locality taken by the Court it was observed that whilst pitched roofs were the predominant building form there was a range of roofing styles, including flat roofs. The fact that the proposed development is shown as having a flat roof would not, in my opinion, have been a sufficient ground for refusing the application. 22 The formal orders are: (1) The appeal is dismissed. (2) Development application for the demolition of the existing house and the erection of three new dwellings pursuant to the provisions of State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability at No. 10 Burton Street, Mosman is determined by refusal of consent. (3) The exhibits, except for Exhibits A and C, may be returned. I hereby certify that the preceding 24 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 23 October 2003 **********

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.