Rainbow Force Pty Limited v Baulkham Hills Shire Council

Land and Environment Court (NSW)|2002-03-01|Before: Pain J, Ms J

Introduction

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against a deemed refusal by Baulkham Hills Shire Council (the Council) for a development application.

The proposed development is a State Environmental Planning Policy No 5 (SEPP 5) development for elderly and disabled people. It will comprise 207 residential apartments situated on ground, first and second floor levels and also provides for basement car parking. The apartments are contained in 19 buildings. The larger blocks will have elevator access from the car park basements. Access to the property is through the front of the property via a central road and pathway system. Also included is a community building which will consist of a community hall, swimming pool, hydrotherapy pool, treatment rooms, library, hairdressing and other facilities. It is a large development on the urban fringe.

The land at the site is zoned Rural 1(c) under the Baulkham Hills Local Environmental Plan (the LEP). SEPP 5 allows otherwise prohibited development in this rural zone with development consent.

The site is adjoined on the eastern boundary by a number of existing single storey houses located in Rosebank Avenue and zoned Residential 2(a3) under the LEP. Mountain View Retirement Village also adjoins part of the eastern boundary of the site. This is a SEPP 5 development approved by the Council in 1996 and is located on land zoned Rural 1(c). Land adjoining the site at the southern and western boundary is Rural 1(c) zoning, Kenthurst Road is to the north and land on the other side of that road is also zoned Rural 1(c). The southern boundary adjoins a rural residential property containing a large residence. There are large institutional developments such as a school, library and community centre opposite or further along Kenthurst Road in the general vicinity of the development.

The Court had the benefit of hearing from a number of expert witnesses who gave oral evidence for the Applicant and the Council in the matter. Expert witnesses for the Applicant included Mr Don Leddingham on water and sewerage matters, Mr Craig Hazell on traffic matters, Mr Warwick Gregg who provided evidence on access for frail and disabled persons, Mr Ludvik a town planner, Mr Riddington in relation to retirement services. Expert witnesses for the Council included Mr Len Hutton in relation to water and sewerage, Mr Peter Dundon, hydrologist, Mr Andrew King in relation to traffic, Mr Mark Relf on accessibility issues, Ms Rebecca Johnson the Council's town planner, and Mr Lester a consultant town planner. The Court also had the benefit of a view during the course of the hearing.

Issues 7. The Council's Statement of Issues filed in the proceedings contained 18 issues. At the hearing the following issues were focussed on: (i) Issue 1, compliance with cl 3 of SEPP 5; (ii) Issue 2, compliance with cl 9 of SEPP 5; (iii) Issue 3, compliance with cl 12 of SEPP 5; (iv) Issue 4, compliance with cl 12(2A) of SEPP 5; (v) Issues 5 and 5A, compliance with cl 12(4) of SEPP 5; and (vi) Issue 7, compliance with cl 25.

Further issues in the Statement of Issues raised general planning matters which do not arise directly under SEPP 5, and those are the issues in paragraphs 11, 12, 13, 14 and 16 of the Statement of Issues. I am not intending to deal with those separately as a lot of those matters are, in any event, incorporated into the SEPP 5 matters that I do need to consider.

There were also a number of written objections provided in the Council's evidence and compelling oral evidence was given by several of those objectors. As the issues identified in paragraph 15 of the Statement of Issues, namely traffic generation, impact on amenity of the area, size and scale of development, SEPP 5 access requirements, site storm water drainage, water supply, adverse impact on adjoining properties and height, are also covered under the SEPP 5 issues, I will not be separately referring to those matters.

I also note that there were further issues in the Statement of Issues that did not need to be considered at the hearing, largely because they were agreed or were not pressed by the Council. Those are the issues in paragraphs 6, 6A, 9, 10, 17 and 18 of the Statement of Issues.

I should also note that the Council's legal representative argued that an environmental planning instrument that was otherwise relevant could operate where it was not inconsistent with SEPP 5. Essentially that meant that parts of the LEP did apply in addition to SEPP 5. It is not clear to me that that necessarily is the case, but it is not necessary that I deal with that question. I mention it because it is identified in issue 8 in the Statement of Issues.

Aims and objectives of SEPP 5 12. Under cl 3(1) of SEPP 5 the policy aims to encourage the provisions of housing that will: a) increase the supply and diversity of housing that meets the needs of older people or people with a disability, and b) make sufficient use of existing infrastructure and services, and c) be of good design. 13. Further in cl 9 of SEPP 5 it states: the objective of this part is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.

Clause 14 of SEPP 5 contains those standards which cannot be used as grounds for refusal. I note that on the evidence it is clear that this proposal does comply with cl 14.

Clause 12 of SEPP 5 15. Clauses 12(1) and 12(2) provide: (1) Location, facilities and support services The consent authority must not consent to a development application made pursuant to this Part 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 subclause 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, or (b) there is a transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the relevant facilities or services, and (iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive). 16. The evidence shows that there are shops and a medical centre, banks and other necessary facilities available at the Round Corner shops. It is approximately 400 metres from the site boundary to the edge of the shopping centre at Round Corner. The actual shops and the banks are located approximately another 100 metres further across a car park and a road. If the 400 metres is measured from the front of the site, the actual walk to the shops would be in excess of 400 metres. There are, in addition, further shops which are a bus ride away, in the Castle Hill shopping area. Across Kenthurst Road, and quite close to the site, are a number of community recreational facilities and the local library.

The Applicant has proposed that a bus stop on the opposite side of Kenthurst Road be moved to facilitate its use by residents of the proposed development in going to the Round Corner shops where most services are available. It is also proposed to establish a bus stop right outside the site, with a lane constructed for buses to stop immediately outside the site. These bus stops are necessary as the 400 metre distance specified in cl 12 may not otherwise be satisfied.

The Council presented no evidence to the effect that it would not be possible to establish the bus stops. Having said that, there was no evidence from the Applicant that the bus stops in these locations were guaranteed as the relevant bus company and the Council would have to agree to allow those. However, as there was no evidence placed before the Court suggesting that this could not be done, the Court assumes that it is possible that those bus stops can be provided as the Applicant proposes.

I note that the access by foot from the site of the proposed development is uphill. The Applicant is undertaking to construct a new footpath for half of that distance. It is clear from the plans and the view that part of the footpath route is steeper than the 1:14 slope that is specified in the guide produced by the Department of Urban Affairs and Planning, that is the Housing for Older People and People with a Disability in Your Community, a Guide for Councillors and Applicants (the Guide).

There was no specific solution to this gradient difficulty demonstrated, but the Court considers that it could be accommodated by an appropriate footpath design and the Court notes that the Applicant has undertaken to build the footpath in accordance with the Guide.

The evidence on the frequency of private bus services is that the services are reasonably regular and a disabled access bus can be arranged by a phone call to the local private bus company twenty-four hours in advance. There are bus services Monday to Friday and on a Saturday, as required under cl 12. The evidence was less clear regarding the bus services on Sunday. Nevertheless, overall the frequency of bus services was not in itself any justification for refusal of the development.

Depth of the site 22. On that evidence, the Court might have been satisfied that cl 12(1) and cl 12(2) were satisfied, but I need to raise one further matter - the depth of the site which is on average 385 metres. The pedestrian path, designed to appropriate gradients within the site, means that those units at the rear (about 20 units), many of which are without a car space and therefore intended for those who would be dependant on public transport, have a walk of approximately 420 metres each way between their unit and the front of the site and further again to cross the street to access the proposed bus stop on the other side of Kenthurst Road. Access for the rear units does not meet the distance criteria set out in cl 12(2) if this is measured from within the site.

The Court was referred by the Council's legal representative to a decision of Bardetta v Baulkham Hills Shire Council (Senior Commissioner Roseth, NSWLEC, 1 March 2002, unreported). This was brought to the Court's attention because in that case, where the site was also quite deep (325 metres), the depth of the site was given as one of the grounds for refusal for a SEPP 5 development.

The Applicant submitted that it was reasonable to measure the 400 metres from the front site boundary to the boundary of the shopping centre and in support relied on a decision of Bignold J in Hewitt v Hurstville Council [2001] NSWLEC 294. In that case, an appeal from a decision by the Senior Commissioner, the 400 metre distance was measured from the front of the site.

In a merits appeal the Court has to consider the particular proposal before it and in this case, I do not think that the distance requirements have been met. It was put in final argument by the Applicant's solicitor that applying the Council's approach that you should measure from within the site would mean that no deep sites could be developed for SEPP 5 purposes. Each case must be assessed on its merits. In this case I find it is a material matter which means that cl 12 is not satisfied, in that the occupants of a number of units at the rear will have to travel over 400 metres to the bus and obviously even further if they decide to walk to the shops.

Clause 12(2A) of SEPP 5 26. Clause 12(2A) is also a mandatory requirement in SEPP 5 in that: the consent authority must not 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 housework. 27. The Court heard evidence regarding this issue from Mr Riddington of Retirement Living Services for the Applicant. He prepared a support services statement for the proposed development. He also provided a further statement of evidence of the potential for the provision of home delivered meals and personal care and home nursing. In that statement he suggested there were private agency alternatives to public services, such as Meals On Wheels. (Meals on Wheels is provided through the local council under its home and community care program.) Furthermore, he stated that because it was expected the majority of people living in the development, that is up to 90 per cent on his evidence, would have local resident status, they would already be included in the calculations for the provisions of HACC or Health and Community Care Services by the Council.

In contrast to Mr Riddington's evidence, it was the evidence of the Council's town planner and several objectors, that the provision of Meals On Wheels by Baulkham Hills Council would be unable to meet the anticipated demand from the proposed development. I note there was evidence from objectors that residents at Mountain View Retirement Village cannot access the Council's Meals On Wheels service now due to demand exceeding supply.

The general nature of Mr Riddington's evidence about the available services from private agencies when considered with the specific evidence before me about the lack of Meals On Wheels' availability in the area, means that evidence of matters under cl 12(2A) were inconclusive. On balance, refusal on this ground is probably not justified.

Clause 12(4) of SEPP 5: Water and sewerage issues 30. A major issue arose also under cl 12(4) of SEPP 5, a mandatory provision which requires that the Court must be satisfied in writing that housing will be connected to "a reticulated water system and have adequate facilities for the removal or disposal of sewage".

The proposals for the water and sewerage supply and the feasibility study of LHO prepared for the Applicant was for a system which involved the supply of potable water from Sydney Water mains, the supply of toilet flushing water from an on-site bore, a supply of landscaped irrigation water from stored rain water, drainage of sewage to an on-site private pump station and disposal off-site to a Sydney Water main about 500 metres away by a private rising main along Pellitt Lane.

It was clear there would be on-site storage tanks needed for both potable water and flushing water. This is due to the delivery rate of the water supply at one litre per second, meaning 270 litres per person per day, which was based on a letter (tendered by the Applicant) from Sydney Water to a different developer for this site concerning a development of 150 units. Plans of the storage tanks proposed were not provided in any detail and therefore could not be assessed by the Council's expert or the Court.

Mr Hutton, the Council's expert and Mr Leddingham, the Applicant's expert, agreed that the total water supply required was 270 litres per person per day, but disagreed on the proportion that would be used for potable water, sanitary flushing and landscape irrigation. There was an agreement that if the reticulated mains water supply was limited to one litre per second by Sydney Water, as was indicated in the letter in relation to another, albeit much smaller development of 150 dwellings, this was insufficient to supply the 270 litres per day per person for all uses of water at the site.

Mr Hutton maintained the appropriate factor for calculation of water supply and sewage disposal requirements was 3.5 equivalent population (EP) per unit. Mr Leddingham in contrast said that it was 2.5 EP. They agreed the range used in apartments was 1.5 EP to 3 EP. The factor used for detached dwellings was 4 EP under the relevant Sydney Water calculations.

Mr Hutton stated that in his view apartments usually had shared facilities such as laundries and he considered that reduced the consumption of water. Accordingly Mr Hutton advised the Court, although it was not clear on what precise basis he did this, that he had selected 3.5 EP as a reasonable compromise. He also considered the Sydney Water design manual calculation which produced a result of 5.3 EP was excessive.

Mr Leddingham said the range used by Sydney Water for apartments of 1.5 EP to 3 EP was for studios to luxury apartments. He calculated the average population proposal from the Baulkham Hills DCP 23 and in his view, it was 1.8 persons per unit in terms of the average population. He acknowledged the EP figure for water supply arises from a different basis to average population, but he considered the comparison vindicated his use of 2.5 EP rather than Mr Hutton's 3.5 EP. Further support for Mr Leddingham's evidence was found in the Sydney Water letter (for the 150 dwelling proposal) where they had allowed an amount of one litre per second which was calculated to be based on a 2.5 EP. On the evidence the Court considers 2.5 EP to be the more likely accurate calculation for the water supply demand for this particular development.

Even using an EP of 2.5, the proposal is dependant on bore water for sanitary flushing on the design for sewage disposal presented to the Court. The rising main for sewer was to be a 50 millimetre diameter pipe, which meant the sewage had to be emaciated into liquid form and peak flows had to be stored in on-site tanks for pumping over a longer period. The availability of bore water is therefore a key issue. A test bore was drilled during the hearing by the Applicant's contractor. It struck water but had not been tested for long term flow rates, quality of water, nor was it licensed. The records of the flow rates from the test bore were sought to be admitted by the Applicant's counsel on the fifth day of hearing. I did not allow the admission of that material as, in my view, it was sought to be introduced at an extremely late stage of the proceedings, being the second last day of a five and a half day hearing. It also would have necessitated the recall of the Council's expert hydrologist, Mr Dundon. In any case, I understood the tender was for bore log results showing flows recovered. It did not include the necessary testing required, based on the Council's undisputed expert evidence of Mr Dundon, hydrologist, that would have been necessary to demonstrate long term supply.

Mr Dundon had given evidence that simply drilling a test bore hole and finding water was insufficient to demonstrate an indefinite supply of water. The bore required testing for at least 24 hours to establish long term flow rates. In addition, further testing is necessary to establish whether the water quality was appropriate for use at the site. Mr Dundon was convincing in his evidence and there was no reason to doubt that that testing would have been necessary to establish the availability of bore water on a semi-permanent basis.

A question also arises in relation to connection to reticulated water. The Applicant tendered its application to Sydney Water for connection to the supply of reticulated water from the Sydney Water main, but no consent to that application had been received at the time of the hearing. There was evidence from the Applicant's expert about a change in policy by Sydney Water since March 2002, which means that Sydney Water apparently will now give an indication as to whether a particular development can be joined to the Sydney water main. Such an indication was not obtained at the time of the hearing, however.

Argument was put to the Court regarding the construction of the wording of cl 12(4). The Applicant's counsel argued that the Court need only consider the off-site removal of sewage under cl 12(4) so that, for example, the arrangements for the removal of sewage from toilet facilities, would fall outside this consideration, that being essentially the on-site management of the sewerage.

The basis for this submission was that the interpretation is open on the words in cl 12(4) and also that the Council's own expert witness, Mr Hutton, had agreed that the disposal of sewage off-site was adequate. Mr Hutton did later clarify his answer to mean that the disposal of sewage from the on-site pump station to the sewer main along Pellitt Lane was adequate, but he remained concerned about the collection of sewage on site in light of the need for bore water to enable sanitary flushing.

In my view, cl 12(4) should not be so narrowly construed. There is no requirement to do so in the words of the clause. I think it is more correct to construe cl 12(4) as allowing the Court to have regard to the removal or disposal of sewage on-site and off-site in assessing the matter. The Court should look at the total "package" for the disposal of sewage.

The Court cannot be satisfied on the evidence, and in the light of the mandatory provisions of SEPP 5, that adequate facilities for water supply and sewage disposal would be available to the development.

It was submitted by the Applicant's counsel that this matter could be cured by development conditions which allowed for the obtaining of a "section 73" certificate from Sydney Water for the requisite level of water before the development could proceed. The water and sewage disposal systems for the site presented to the Court have not been designed on this basis. Further, I do not think given the requirements of cl 12(4), which do not allow consent to a development application unless the Court is satisfied in writing of those matters, that a condition is appropriate. Accordingly, cl 12(4) has not been satisfied. Clause 25 of SEPP 5
Clause 25 of SEPP 5 states: Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles…
The matters I particularly had to consider at the hearing were: (i) cl 25(a) - Neighbourhood Amenity; (ii) cl 25(b) - Visual and Acoustic Privacy; (iii) cl 25(c) - Solar Access and Design for Climate; and (iv) cl 25(f) - Accessibility. Clause 25(a)
Clause 25(a)(iii) states the proposed development should: where possible, maintain reasonable neighbourhood amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing Clause 25(a)(iv) states that the proposed development should: where possible, maintain reasonable neighbourhood amenity and appropriate residential character by using building form and siting that relates to the site's land form

Clause 25(a)(vi) states that the proposed development should: where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours 48. It was particularly in relation to the single storey detached housing in Rosebank Avenue that a number of substantial concerns were raised about neighbourhood amenity. The proposal itself has a number of units, number 75, 76, 204, 205, 206 and 207, which are part of larger blocks of units immediately adjacent to the single storey detached dwellings in Rosebank Avenue.

It was the evidence of Council's town planner, Ms Johnson, Mr Lester, consultant architect and of the Rosebank Avenue residents that the current proposal does have an unacceptably large impact on these properties with inadequate setbacks, inappropriate building form and siting.

Similar considerations also apply to the adjacent units of the existing Mountain View Retirement Village. It might be possible to say the impacts are arguably less on the Mountain View Retirement Village, but nevertheless are still very real. In that regard I note that the community centre, which is essentially a single storey building, is close to the Mountain View Retirement Village. The Applicant has noted that its opening hours have been changed to avoid unacceptable amenity impacts and certainly it would be expected this could ameliorate some of the impacts on those Mountain View Retirement Village residents near that community centre.

I should note the Applicant has offered to move the community centre four metres westwards away from the eastern boundary. This appeared to be something of a mixed blessing, as this would reduce the communal open space on the west side and push the actual building closer to the internal main roadway. It would also potentially divert the outside activity associated with the community centre onto the east side of the boundary where the Mountain View residents adjoin.

The Applicant also offered to delete the six units that I have already identified in par 48 which are immediately adjacent to those units in Rosebank Avenue. I do not think that will ensure that sufficient attention has been given, in the overall context of the whole development, to ameliorating the impact on those residents.

It is important to note that this is a large "greenfield" site with few constraints which the Applicant has to accommodate, so that the limitation which appears in cl 25(a) of "where possible", does not seem to me as relevant as for a development located amongst existing urban development. Given there are very few site constraints, it should be possible on such a large site to maintain better neighbourhood amenity and appropriate residential character than the proposal currently does. Accordingly, I do not consider adequate regard has been given to the relevant matters in cl 25(a).

Clause 25(b) Visual and Acoustic Privacy 54. Clause 25(b) relevantly states: The proposed development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and (ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths. 55. In relation particularly to 25(b)(i), there was evidence presented in relation to the residents of the existing houses in Rosebank Avenue adjoining the site. There is no doubt those residents are in close proximity to the development with potential overlooking and acoustic privacy impacts on their homes. There was evidence from Mr Ludvik, the Applicant's town planner on the efforts made to ensure that there was not overlooking of back yards through the angling of the buildings, and the use of landscaping. However, there was contrasting evidence from the Council's town planner, Ms Johnson, and consultant architect, Mr Lester, that the visual impacts particularly would be significant. It was the evidence of the residents that there would be major impacts on visual and acoustic privacy. It is clear the impacts will be substantial on those properties in Rosebank Avenue which adjoin the site.

I note it was also proposed by the Applicant's town planner, Mr Ludvik that there would be a standard 1.8 metre solid fence at the rear of these properties and that this, together with landscaping, would "cure" many of the privacy concerns. But in the current rural setting over which these houses look, where they look through open fences onto open paddocks, I consider the impact of the current design will be unacceptable and even such a fence itself would be a major impact.

I do not consider adequate regard has been given to the matters in cl 25(b).

Clause 25(c) Solar access and design for climate 58. Under cl 25(c)(i) the proposed development should, where possible, ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space. Clause 25(c)(ii) requires the development, should where possible, Involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation, solar heating and lighting by locating the windows of living and dining areas in a northerly direction. Off-site impacts 59. The off-site impacts in issue under cl 25(c)(i) are principally overshadowing of the adjoining Rosebank Avenue residents' homes. I note the Applicant's evidence suggests that it has already amended the proposal once before the application before the Court to delete a second storey on those units adjacent to the Rosebank Avenue residents. The houses in Rosebank Avenue only receive direct sun into their living rooms in the afternoon in mid-winter. At the moment in mid-winter this means from about 1pm to the last rays of the sun at about 4-4.15 pm. It seems the proposed buildings on the subject site would reduce the solar cutoff further to before 3 pm. This is in part because most houses in Rosebank Avenue are excavated below the level of the subject site at the boundary and are set well back on the site due to Council regulations at the time they were built. In projecting the shadow diagrams the Applicant did not appear to take full account of this and the shadowing appears likely to be worse than it appears on the shadow diagrams. On this basis it seems that in relation to the off-site impacts cl 25(c)(i) has not been met.

On-site impacts 60. In relation to cl 25(c)(i), the evidence on solar access/sunlight for housing on the site was detailed. Mr Lester, consultant for the Council, demonstrated in his evidence that about 41 per cent of the units achieve the recommended solar access for sunshine to their living rooms under the AMCORD Guide, which is referred to in a note to this clause of SEPP 5. Given this is a large site with very few constraints there seemed no reason, in Mr Lester's view, to prevent the favourable orientation of up to 75 per cent of units in terms of solar access. In his view this will constitute good design, especially for a retirement village, where people were likely to spend more time at home than in other apartment complexes.

The Applicant's expert identified that skylights, which were more properly described as clerestory windows, could be provided in a number of the units which are south or south-west facing about which Mr Lester had expressed concern. The Applicant's expert said that if these were included the percentage of complying units could be about 55 per cent. Mr Lester indicated the units intended for clerestory windows would need internal redesign to ensure the sun did access the living room. This detail was not available to the Court except for one section through one unit which was provided by the Applicant. I do note, however, the Applicant's witnesses stated that the roofs had been designed so that skylights could be incorporated if necessary.

Mr Ludvik, the Applicant's town planner, submitted that the statement in cl 25(c)(i) that where possible "adequate daylight to the main living area of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space", meant that the proposal did comply with this when the difference between daylight and sunlight was taken into account. In his view therefore, the design of the proposal was satisfactory.

Mr Ludvik also gave evidence that in his view cl 25(c)(ii) was dealing essentially with energy conservation and he noted that the naTHERS rating for the proposal exceeded the minimum requirement, so that the proposal was sufficiently energy efficient within the naTHERS rating requirements.

Mr Lester for the Council took a different view. He said that the same clause that was noted in relation to the fact that AMCORD should apply, could be referred to as establishing adequate solar access and dwelling orientation. He particularly drew the Court's attention to element 5.10 A9.1 relating to "windows to north facing living areas receive at least three hours of sun between 9am and 5pm on 21 June over a portion of their surface". In this case "sun" meant "sunshine" and not daylight and this was the criteria with which he said only 41 per cent of the units complied.

Mr Lester also considered that cl 25(c)(ii) dealt with amenity in addition to energy efficiency matters. Mr Lester's evidence was that there was an obligation to achieve both energy conservation and greater amenity at the site and achieving one without the other was not good design.

Mr Lester was convincing in his detailed evidence that on this large open site, given another layout and design which had proper regard to the provisions of cl 25 of SEPP 5, the proposal could achieve 75 per cent of units with high amenity as well as acceptable energy conservation, not the 41 per cent or possible 55 per cent that is currently proposed. I accept Mr Lester's evidence on these matters and consider cl 25(c) has not been complied with in the current proposal.

Clause 25(f) access, convenience and safety 67. The last part of cl 25 which was referred to at some length at the hearing was cl 25(f)(i) and (ii), dealing with accessibility.

Clause 25(f)(i) requires that a development should, where appropriate: (i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and (ii) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors

I will deal firstly with the safety and convenience of the access to the site at the Kenthurst Road frontage. That was dealt with in the evidence of the traffic experts, Mr Hazell for the Council, and Mr King for the Applicant.

The evidence showed that in 1998 Kenthurst Road was counted at 16,500 vehicles per day. Mr King, the Council's traffic engineer calculated that from the known annual increase in traffic that it currently took 19,000 vehicles per day. There was evidence that the traffic lights at the corner of Old Northern Road and Kenthurst Road meant that in the morning peaks there was an 800 metre queue of cars back from the intersection past this site. Residents gave evidence confirming that fact. Residents who gave evidence also said cars would not necessarily stop for pedestrians using the existing refuge on Kenthurst Road near the corner of Martin Place, which is some 200 metres east of the site. Mr King confirmed that the same 1998 traffic analysis for Kenthurst Road showed the 50 kilometre and 60 kilometre speed limits near and past the site were frequently exceeded, with the 85th percentile of cars driving at 74 kilometres per hour. He said there was not a great enough volume of persons wanting to cross Kenthurst Road near the site to justify a zebra crossing. A pedestrian refuge was the only facility that should be provided and pedestrians had no right of way in using such a refuge. Although there was evidence from local residents of drivers regularly exceeding the 50 kilometre per hour speed limit outside the site and not stopping for pedestrians using the existing refuge, the Court also notes the traffic engineer agreed that the proposal was as safe as could be expected and that this was not a matter sufficient to warrant refusal.

Mr Hazell, the Applicant's expert had calculated crossing times for pedestrians from the Australian standard which allowed for slower crossing times by elderly and frail persons and disabled persons. He said the morning peak traffic was not a concern because the queued traffic would be slow moving, although he did note that he could not operate his INTANAL computer analysis for queued traffic. The traffic which was travelling outside peak hours was of the most concern due to the high speeds recorded, but in Mr Hazell's expert view this still produced acceptable safety distances. It was clear the site distances on this straight of road are 165 metres in one direction and 220 metres in the other. A car travelling at 80 kilometres per hour could stop in a distance of 110 metres. This in his view was an acceptable margin of safety, even for cars travelling at over 30 kilometres above the speed limit and I accept this evidence.

It was also put to Mr Hazell that cars exiting the site and entering the merger lane at the proposed seagull intersection with Kenthurst Road could be another source of danger to pedestrians. The concern put to Mr Hazell was that drivers would be intent on looking to the rear for oncoming cars during the merge manoeuvre and may not see a pedestrian. Mr Hazell's evidence was that the driver merging with traffic had the obligation to see both oncoming cars and pedestrians. A pedestrian in the centre of the road at the refuge had no right of way and had the obligation to wait until the road was clear. In his view this was a safe manoeuvre nevertheless, as the proposed development would generate only 11 cars per hour in peak periods, falling to much lower rates during the day, and the potential for an accident was very small.

The Court requested Mr Hazell be recalled when it appeared his calculations on safe crossing times for elderly persons had not included the width of the bus "slip" lane proposed on the north side of Kenthurst Road for the new bus stop. He presented a modified plan which eliminated the slip lane at the refuge site and created a "blister" in the kerb lane on the northern side to provide only a single road lane between the pedestrian refuge and the pathway. He maintained, and the Court accepts, that this would create a safe crossing environment for pedestrians.

The Court accepts Mr Hazell's evidence and finds that in terms of the safety outside the site on Kenthurst Road the proposal satisfies cl 25(f). Safety and convenience at Round Corner
It is also necessary to look at the safety and convenience at the Round Corner shops, as one of the ways facilities can be accessed is by a bus which goes to the shops at Round Corner.

There was concern raised in the Council's evidence about accessing of ramps at the end of the bus journey from the site at the Village Shopping Centre at Round Corner. The nearest bus stop opposite the shops had steps on the route to the pedestrian crossing so that it was unsuitable for frail or disabled persons who are either in a wheelchair or use a walking frame. The only other option was to go to the next bus stop beyond the shops just beyond Stonelea Crescent on Old Northern Road and this required that the passenger walk/travel back some 200 metres, using another pedestrian refuge crossing on Old Northern Road, in order to access the shops.

The Applicant presented the expert evidence of Mr Gregg on the accessibility of frail and disabled persons. It was his view, which I accept, that this was a safe and convenient option for access for frail and disabled people. I note that it was the evidence of the Council's experts that this was not the most convenient access available and raised questions of safety given that this bus stop would require the crossing of Old Northern Road.

On balance, while the arrangement could not be described as ideal, I think that cl 25(f) has been satisfied. Good design principles - SEPP 5 clause 3
The Council submitted that cl 3 of SEPP 5 had not been complied with in relation to the aims of SEPP 5, which includes having a development that is of good design.

In terms of overall principles of good design there are a number of matters which could be considered. A key issue under cl 3(2)(c) of SEPP 5 is whether or not the built form responds to the characteristics of its site and location. There was substantial evidence given in relation to the location of the site between a rural village and a rural landscape.

The Applicant's town planning expert Mr Ludvik, considered the proposed development was acceptable given the characteristic of the site and its surrounds. The Applicant submitted that in view of the large institutional buildings, such as the library on the opposite side of Kenthurst Road and the existing Mountain View Retirement Village on the eastern boundary, the character of the area was quite mixed. I however agree with the Council's town planner Ms Johnson that the character of the area is largely rural in nature with the predominance of single storey residential development characterising a rural village atmosphere on the eastern boundary.

The site is a large one and can be viewed from around the locality from Old Northern Road and of course from Kenthurst Road. The sensitivity of this location is noted in two rural scenic protection studies carried out for the Council and referred to in the Council's town planning evidence of Ms Johnson. The layout of the buildings across the site with virtual site coverage was also criticised by Mr Lester who gave evidence for the Council about the lack of view corridors as well as the lack of preservation of amenity of neighbours. I also note that Professor Toon's evidence, which was filed by the Applicant in support of its case, was in somewhat conflicting terms on this point, as he stated the design was satisfactory in the body of his report, but then concluded the design overall was good.

Further I note that eight of the buildings, being the larger buildings on the site will exceed two storeys by virtue of the car park underground which means that the bottom storey will project more than one metre above the ground. This does contribute to the high density appearance of the proposal which in my view does not deal appropriately or adequately with the transition from village to rural scenery at the site.

It seems to me that on the 4.3 hectare greenfield site in this case, there is ample space to give proper regard to neighbours, provide lower density development on the perimeter and greater setbacks in the units adjacent to the existing houses, preserve view corridors, provide greater amenity for residents and provide a design more in character given the essentially rural character of the surrounding area. I note that the Applicant has provided an 18 metre setback for a single house on Rural 1(c) land on the southern boundary of the proposal.

In light of all these matters I do not consider the proposed design is good design in this locality as envisaged by cl 3 of SEPP 5.

Clause 9 of SEPP 5 86. I do not intend to make any findings in relation to the issues raised under cl 9. Given my earlier findings it is not necessary. In any event it is somewhat difficult to do so. There was essentially conflicting evidence of the two accessibility experts, that is Mr Gregg for the Applicant and Mr Relf for the Council. Both appear well qualified on matters of access for disabled people and I note that both are in motorised wheelchairs and were clearly well able to give expert evidence as to the appropriateness of the development proposed for the site in relation to suitability to older, frailer people and those with disabilities. I do note that those two experts did manage to agree on all the detailed requirements for the layout of the units, as required under cl 13 of SEPP 5.

Orders The Court orders that:

The appeal be dismissed
The exhibits be returned.

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 : Rainbow Force Pty Limited v Baulkham Hills Shire Council [2002] NSWLEC 146 APPLICANT Rainbow Force Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 11025 of 2001 CORAM: Pain J Construction and Interpretation :- construction of State Environmental Planning Policy No 5 cl 12 KEY ISSUES: Development Application:- appeal against deemed refusal - merit considerations Baulkham Hills Local Environmental Plan LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 State Environmental Planning Policy No 5 cl 3, cl 9, cl 12, cl 14, cl 25 CASES CITED: Bardetta v Baulkham Hills Shire Council (Senior Commissioner Roseth, NSWLEC, 1 March 2002, unreported); Hewitt v Hurstville Council [2001] NSWLEC 294 DATES OF HEARING: 15/07/2002 - 19/07/2002, 22/07/2002 EX TEMPORE JUDGMENT DATE : 07/26/2002

At a glance

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Judgment (78 paragraphs)

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Cases Cited (2)

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