Information Gateways Pty Ltd v Hornsby Shire Council

CASES CITED: M & R Civil Pty Ltd v Hornsby Shire Council [2003] NSWLEC 437

APPLICANT T. To SOLICITORS Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT P. Jackson (solicitor) SOLICITORS Pike, Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 The applicant appeals from the refusal by Hornsby Shire Council ("the council") of a development application to demolish the existing buildings and erect 83 single-storey serviced self-care dwellings under State Environmental Planning Policy (Seniors Living) 2004 ("the SLSEPP") on lot 1 DP 135398 and lots 2 and 3 DP 225754, known as 589-591 Old Northern Road, Glenhaven ("the site"). In this hearing the Court has had the assistance of Senior Commissioner Roseth.

The site 2 The site is on the northern side of Old Northern Road. It is rectangular and has an area of 7.68 ha. A watercourse traverses the centre of the site along a southwest-northeast axis. The site slopes away from Old Northern Road and down to a watercourse before rising up towards the rear boundary. 3 The surrounding development to the west and north is rural-residential. However, the property adjoining the rear part of the western boundary has consent for development for housing under State Environmental Planning Policy 5 ("SEPP 5", a Policy that has been repealed and replaced by the SLSEPP). Several other sites fronting Old Northern Road to the west also have consents for SEPP 5 housing. Adjoining to the east is an Amber Tiles showroom and a rural-residential dwelling. To the south along the opposite side of Old Northern Road is a residential area. 4 Bus stops in either direction are located on Old Northern Road within 250 m of the entry to the site.

Relevant planning instruments and policies 5 The application is made under the SLSEPP which inter alia permits housing for "seniors living" on land adjoining land zoned primarily for urban purposes. 6 Pursuant to Hornsby Local Environmental Plan 1994 the site is zoned Rural BA (Small Holdings - Agricultural Landscapes), and the area on the opposite side of Old Northern Road is zoned Residential 2(d). The Rural Lands Development Control Plan ("the Rural Lands DCP") establishes criteria for visual amenity for rural zones.

The proposal and its history 7 The applicant proposes to demolish the existing dwellings on the site and to erect 83 single-storey dwellings of a type that the SLSEPP defines as "serviced self-care housing". Each dwelling has a double garage. In addition there are 21 visitors' car spaces. There is a community building comprising kitchen, community room, multi-purpose room, two offices and two consulting rooms. Close to the community building a tennis court and a swimming pool are proposed as part of the development. 8 The applicant lodged the development application in April 2004. Following notification and negotiations with the council, the applicant amended the proposal in July and October 2004. The amendments were re-notified and the council received 13 letters from six objectors. After considering a report by Mr Bill Alexander, a planner employed by the council, the council accepted the report's recommendation and refused the application on 2 February 2005.

The issues 9 The council submitted a Statement of Issues containing 14 issues. At the beginning of the hearing the council's advocate, Mr P Jackson, indicated that eleven issues have been resolved, leaving the following for determination:- · Does the proposal comply with the requirements of the SLSEPP for on-site services? · Does the proposal comply with the requirements of the SLSEPP for access to off-site services? · Is the proposal compatible with the area's rural character?

Site view and objectors' evidence 10 On 29 March 2005 the Court viewed the site in the presence of the parties. During the view the Court heard the evidence of four objectors. Mrs A Collins of 398 Old Northern Road was concerned that the proposed development would adversely affect traffic on Old Northern Road, in particular the proposed median strip. Ms J Meek who represented the Round Corner Residents' Association, said that, in addition to traffic impact, her concern was the cumulative impact of the retirement villages approved along Old Northern Road near the site. Ms D Jessup who lives at 6 Muston Place, about 2 km from the site, said that the applicant should meet the cost of traffic lights needed as a consequence of the development. Mr C Baxter who lives at 14 Wayfield Road, also some distance from the site, said that in addition to traffic, he was concerned with the impact of the proposal on the area's rural character. 11 Mr T Rogers, the traffic expert appointed by the Court, commented on the residents' concerns about traffic impact, which, in his opinion, were not valid. He had taken into account the proposal as well as the other developments approved in the vicinity and expressed his opinion that the cumulative impact was well within the capacity of Old Northern Road. 12 The council did not raise traffic as an issue. Given the opinion of the Court-appointed expert and the lack of contrary expert evidence, the Court accepts that the proposal's impact on traffic is acceptable.

Requirements of the SLSEPP for on-site services 13 Clause 2(1) of the SLSEPP states the aims of the Policy. Subclause (2)(c) is relevant to this case. It states that the aims will be achieved by: Ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes. 14 Clause 15 of the SLSEPP states: In this Policy, serviced self-care housing is seniors housing that consists of self-contained dwellings where the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care. 15 Clause 74 of the SLSEPP states: (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing 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 housework. (2) For the purposes of subclause (1), residents of a proposed development do not have reasonable access to the services referred to in subclause (1) if those services will be limited to services provided to residents under the Home and Community Care Program administered by the Commonwealth and the State. (3) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes, unless it is satisfied that the development will result in 70 or more dwellings (whether because of a new development or additions to an existing development) for use as serviced self-care housing. 16 The applicant tendered copies of pro-forma statements by the managers of four service providers, namely: · Tender Loving Cuisine (a provider of cooked meals), dated 22 March 2005, · Dial-an-Angel, dated 22 March 2005, · Aged Care Assessment Team (ACAT), dated 5 February 2005, and · Meals on Wheels, dated 14 March 2005. 17 The four letters contained the identical sentence: "We confirm that we can in principle provide services to the retirement village at 589-593, 607 and 603 Old Northern Road Glenhaven". The ACAT letter contained the handwritten comment "Current ACAT wait time 4-5 weeks and all referrals triaged according to need". The Meals on Wheels letter contained the handwritten comment "Availability depends on volunteers registered for specific service and/or waiting list." 18 On the second day of the hearing the applicant tendered two further letters. The Chief Executive Officer of Tender Loving Cuisine, Mr J Barker, wrote that Tender Loving Cuisine would agree in principle to enter into an agreement with the community association of the proposed Seniors Living development to provide meals to the future residents. The Chairman of Directors of Dial-an-Angel, Ms D Blackman, wrote that her organisation has sufficient capacity to supply assistance in housekeeping, gardening, home maintenance and nursing to the 83 dwellings proposed in the development. 19 The applicant also proposed additional conditions to be attached to the consent. The effect of the conditions would be to require the applicant, before construction commences, to prepare and register a Community Management Statement that would identify the services to be provided on the site. 20 The parties tendered a report by Mr T Beardsmore, a disability access consultant appointed by the Court. In Mr Beardsmore's opinion the evidence offered by the applicant satisfied the requirements of cll 15 and 74 of the SLSEPP. While the council did not require Mr Beardsmore for cross-examination, it did not accept his opinion. 21 In the council's primary submission, Mr Beardsmore misconstrued the requirements of cl 15. The council contended that the words "provided on site" mean that the services must not only be provided on the site, but must also be provided from the site. For example, home-delivered meals must be prepared in a kitchen on the site and nursing assistance must be available from a nurse who is permanently located on the site. The Council submits that to the extent that cl 74 appears to suggest the contrary, the Court should give weight to cl 15 which makes it clear that the services mentioned must be provided from the site.

22 If the Court rejects the above interpretation, the council alternatively submits that the evidence tendered by the applicant was not adequate to satisfy the Court that meals, cleaning services, personal care and nursing care would be provided as part of the development. 23 The applicant submits that cl 74 makes it clear that the services do not need to be provided from the site. The applicant contends that signed contracts with service providers are not appropriate at a time when the development consent has not yet been obtained. An indication in writing by service providers that they are willing and able to provide the service is, in the applicant's submission, adequate.

Findings 24 In respect of the provision of on-site services for serviced self-care housing on land that adjoins land zoned primarily for urban purposes, the SLSEPP indicates the following: · It is the applicant's responsibility to provide the services of meals, cleaning services, personal care and nursing care. · The services must be available on the site. · The provision of the services is part of the development. · The residents must have reasonable access to the services. · The applicant cannot rely on services provided by the Home and Community Care (HACC) program. 25 Clause 74(1) of the SLSEPP does not require that the services referred to in subpara (a) must be provided from the site, i.e. that the meals must be cooked on the site. The Court therefore rejects the council's primary submission. 26 The key requirement of the SLSEPP is that the servicing arrangements should be "part of the development". The development application should therefore contain a similar level of detail in respect of the services as it does in respect of the physical elements of the proposal, such as the construction of buildings or the placement of roads. The applicant has failed to provide adequate information concerning servicing and the Court accepts the council's alternative submission. 27 While the Court accepts that it would be unreasonable to require the applicant to provide a signed contract with a service provider for a development that has not yet been approved, letters to the effect that a service provider is able to provide services are insufficient. To be satisfied in respect of cll 2(1), 15 and 74 of the SLSEPP, the consent authority requires evidence that a particular service provider will provide the services, that the detailed terms under which the services are to be provided have been agreed, and that the services will be provided for the life of the development. The consent authority therefore requires: · Draft contracts with service providers together with evidence that both parties agree to the terms of the draft contract; · A servicing management plan that will be part of the consent and that provides for the continuation of the services for the life of the development. For proposals to be subdivided under the Community Land Development Act 1989, a Community Management Statement under s 5 of the Act would fulfil this requirement. 28 The conditions proposed by the applicant leave the servicing arrangements to be determined at a time after the consent is issued. The servicing arrangements comprise an essential ingredient of the development. In their absence, the development would be prohibited. The Court must be satisfied of the servicing arrangements when the application is determined. The application cannot therefore be approved in its current form.

Requirements of the SLSEPP for access to off-site services

29 Clause 25 of the SLSEPP relevantly provides: (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to: (a) shops, banks and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner.

(2) Access complies with this clause if: (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development and the overall average gradient along the distance is no more than 1:14, although the following gradients along the distance are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for short distances of no more than 1.5 metres at a time. … 30 Clause 75 of the SLSEPP states: (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-contained housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development: (a) that will drop off and pick up passengers at a local centre that provides residents with access to the following: (i) shops, banks and other retail and commercial services that residents may reasonably require, (ii) community services and recreation facilities, (iii) the practice of a general medical practitioner, and (b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day. 31 The development is not located within 400 m of the facilities referred to in cll 25 and 75 but the applicant proposes a condition which would require the Community Management Statement under s 5 of the Community Land Development Act 1989 to include the provision of the bus in compliance with cl 75(1)(b). Mr Beardsmore considered that the proposal complied with the SLSEPP because of the provision of a village bus. 32 The council did not accept Mr Beardsmore's opinion. In the council's submission, cl 25(1) and (2) can be satisfied only by a development that is within 400 m of the facilities. The nearest place where these services exist is Round Corner, which is located significantly more than 400 m from the site. 33 Both cll 25 and 75 are mandatory, but while cl 25 is a general provision relating to development for seniors housing, cl 75 pertains solely to development of serviced self-contained housing on land which adjoins lands zoned primarily for urban purposes. 34 Clauses 25 and 75 are each directed to ensuring that residents of seniors living developments will have access to the facilities which are identically referred to in each of such clauses. Clause 75 ensures the provision of transportation to the listed facilities where the development is of the type and on land referred to in the said clause. Both clauses prima facie are operative. It would be illogical however to require the provision of a bus service for the residents where the development was located within 400 m of the facilities. Clause 75 is clearly intended to operate in those circumstances where the development is located further distant than 400 m from the nominated facilities. As such, cl 75 operates to exclude cl 25 in relation to those developments referred to in cl 75.

35 The Court's earlier observations at [26]-[28] in relation to on-site servicing also apply to the provision of a bus to transport residents to off-site services. To satisfy the Court on this aspect it is not sufficient to include the arrangements for the bus service in a Community Management Statement that will be prepared only after the consent is issued. The Community Management Statement incorporating details in respect of each of the relevant subject matters, including transport arrangements, must be available for consideration by the Court during the hearing of the appeal.

36 In the council's submission the proposal is inconsistent with the rural character of the surrounding area. The council adduced no expert evidence on this matter apart from the observations in Mr Alexander's report included in the council's bundle of documents that was tendered. Mr Alexander, who did not provide oral evidence at the hearing, noted: Due to site constraints, the development is concentrated in two pockets either side of the watercourse that traverses the middle of the site. As a consequence, the development is provided with setbacks inconsistent with adjacent surrounding rural residential development. 37 The above implies that the council considers the proposal inconsistent with the rural character because it does not provide sufficient setbacks resulting from the proposed dual clusters divided by a watercourse. The planning expert appointed by the Court, Mr N Kennan, did not agree. In his opinion "the proposed development is not inconsistent or out of character with the existing rural development".

38 In M & R Civil Pty Ltd v Hornsby Shire Council [2003] NSWLEC 437, Roseth SC and Moore C commented: LEP 94, the Rural DCP and the Rural Lands Study contain objectives and principles relating to the Shire's rural areas. These may be summed up as the maintenance of rural character. SEPP 5, under which this application is made, permits medium density housing on rural land that adjoins urban development, provided the occupants are old or disabled people. Thus, while the local controls permit two or three dwellings on this site, SEPP 5 permits about 150 dwellings. We do not think therefore that it is valid to criticise a proposal under SEPP 5 on the basis that it is not rural in character. If it had only half as many dwellings as it does, it would still not appear rural. 39 The SLSEPP provides that where a proposal's Floor Space Ratio (FSR) is 0.5:1 or less, density cannot be used as a reason for refusal. The subject proposal has a FSR of 0.17:1, or approximately one-third of the FSR permitted by the SLSEPP. It is not appropriate to exclude the area on either side of the watercourse from the site area since that area is landscaped and provides benefit to the residents. Moreover, the fact that the 83 dwellings are split into two clusters makes them more rather than less consistent with the rural area. Even if the area around the watercourse were excluded, the FSR would be in the order of 0.2:1 which is less than half that stipulated by the SLSEPP as an acceptable density. 40 All the dwellings are single-storey. In the circumstances the proposal is as consistent with the rural character of the area as is possible for a development under the SLSEPP, which is essentially an instrument which makes provision for medium density housing.

Conclusions 41 The proposal fails to satisfy the Court in respect of the provision of on-site services and the access to off-site facilities and services. The principal deficiency in the evidence before the Court is that the applicant proposes to defer the making of detailed arrangements for on-site services and for transport to off-site facilities to a time after the issue of consent. Such arrangements comprise an essential matter for the Court's consideration at the time it determines the application and cannot be deferred. 42 The applicant's advocate, Mr T. To, requested that, in the event the Court is not satisfied on the servicing issue it should make its findings public without making orders. The Court agreed to this request. It remains for the parties to make submissions concerning the course which the parties now wish to pursue. Orders

1. The proceedings be referred to the Registrar's callover list on Thursday 19 May 2005 for the allocation of a hearing date if required.

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