Seribray Pty Ltd v Sutherland Shire Council

IN THE LAND AND 11042 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 29 June 2000

SERIBRAY PTY LTD Applicant v SUTHERLAND SHIRE COUNCIL Respondent

The applicant, Seribray Pty Ltd, has appealed against the deemed refusal of Sutherland Shire Council to grant development consent in respect of a development for aged and disabled persons under State Environmental Planning Policy No 5.

I have concluded, for the reasons hereafter set out, that the appeal should be dismissed, and that development consent should be refused upon the grounds of the inadequacy of access via Kurramatta Lane and the unacceptable impact of the removal of mature and significant trees on the character of the locality, the natural environment, and the visual aspect from the waterway.

I record that I had the benefit of a site inspection.

The land which is the subject of the development application ("the site") is situated at Gunnamatta Road and Kurramatta Lane, Cronulla, and it adjoins Gunnamatta Bay. It comprises four adjoining lots upon a large site with a total area of 7,028 m2. The lots are lot A in DP 394171, which is known as No 18 Kurramatta Lane ("No 18"); lot 1 in DP 746636, which is known as No 10 Gunnamatta Road ("No 10"); lot 5 in DP 24698, which is known as No 12 Gunnamatta Road ("No 12"); and lot 1 in DP 659336 ("the foreshore lot"), which is located on the western shore of Gunnamatta Bay.

There is a dwelling presently situated on No 18 and No 10 and a dwelling and a brick pool house on No 12, whilst upon the foreshore lot there is presently erected a boat basin, a boatshed and the larger part of a swimming pool (the remainder of the pool extending into No 12). A tennis court is constructed upon No 10.

No 18 has a battle-axe shape, with a frontage to Kurramatta Lane. No 10 and No 12 gain access to Gunnamatta Road via a right-of-way ("the Magenwil right-of-way") which burdens No 12A Gunnamatta Road.

To the north of the site, there are three houses, No 14 Kurramatta Lane ("No 14") occupied by Mrs Pauley, No 16 Kurramatta Lane ("No 16") occupied by Mr and Mrs Wills, and No 16A Kurramatta Lane ("No 16A") occupied by Mr and Mrs MacPherson. On the south, there are two houses, No 12 Grosvenor Crescent occupied by Ms Allen and No 14 Grosvenor Crescent occupied by Mrs Radford. On the west is No 12A Gunnamatta Road, which I will refer to as "Magenwil", and which is occupied by Mr and Mrs Collins.

The proposal is to demolish the existing dwellings and to erect 21 dwellings upon the site. The dwellings will be erected in five separate sections, that is to say, units 1 - 8 will extend in a terrace row along the northern boundary, units 9 - 11 will be located on the north-eastern corner, units 19 - 21 will extend in a terrace row along the eastern boundary, units 16 - 18 will be located on the southern boundary, and units 12 - 15 will extend in a terrace row along the western boundary.

In addition to these dwellings, a manager's office is intended to be constructed on that part of the site which forms the access to Kurramatta Lane.

All of the units are to be two storeys, with the exception of units 16 - 19, and each is to contain three bedrooms which will, except in the case of units 16 - 19, be located on the upper floor.

The structures on the foreshore lot will be retained as recreation facilities for the occupants of the units, but the brick pool house on No 12 will be converted into a village centre with the installation of a kitchen and the construction of an outdoor eating area.

The foreshore lot is zoned 7(a) Environmental Protection (Waterways) under the Sutherland Shire Local Environmental Plan 1993 ("LEP 1993") whilst all the remaining lots are zoned Residential 2(e1). In relation to the remaining lots development for the purpose of dwelling houses is permissible with consent.

The foreshore lot is "environmentally sensitive land" within the meaning of State Environmental Planning Policy No 5 ("SEPP 5") and as such is land to which SEPP 5 does not apply. In a separate judgment ( Seribray Pty Ltd v Sutherland Shire Council [2000] NSWLEC 102, unreported), I found that existing use rights for residential purposes attached to the foreshore lot, and, consequent upon that judgment, the applicant by leave amended its development application to seek development consent for a change of, or intensification of that existing use on the foreshore lot and development consent for a SEPP 5 development on the remaining lots. This combined development application is not divisible - that is, the Court was informed that, if development consent for a SEPP 5 development on the remaining lots was refused, no development consent would be sought in relation to the foreshore lot, and vice versa.

The development is permissible with consent on all lots except the foreshore lot in accordance with the provisions of SEPP 5, for, as cl 10 of SEPP 5 provides, development for the purpose of any form of housing for older people or people with a disability is permissible with consent despite the provisions of any other planning instrument, if the development is carried out in accordance with SEPP 5.

That is not to say that LEP 1993 is irrelevant. Some of its provisions are directly relevant to an assessment of the proposed development, and I will deal with those provisions when considering the relevant issues.

The council's Development Control Plan 9.1/07 Edition 5 - Housing for Aged and Disabled ("the DCP") also applies. Its purpose, as set out in cl 2, is to set guidelines to ensure that SEPP 5 development is "compatible with the other housing in the locality so that the living environment for residents is enhanced …" .

The council nominated 13 issues in the statement of issues it was required to file. They may be shortly summarised as follows:

(1) Access to shops and other services and facilities (cl 12(1)(a) and (b) of SEPP 5); (2) Accessibility for pedestrians and motorists (cl 25(f) of SEPP 5); (3) Access via Kurramatta Lane; (4) Width of the internal access road; (5) Adequacy of turning area into garages; (6) Removal of mature and significant trees; (7) Impact when viewed from the waterway (cl 23(h) of the LEP); (8) Design and bulk of the development on the northern boundary; (9) Visual and acoustic privacy (cl 25(b) of SEPP 5); (10) Internal amenity of units 18 and 19; (11) Removal of the structures on the foreshore lot (cl 14A of the LEP); (12) Out of character with the locality and an overdevelopment of the site (cl 18, cl 20, cl 22E and cl 23 of the LEP); and (13) Issues raised by objectors.

The issues which caused the greatest concern were the access via Kurramatta Lane (issue 3, which is linked to issue 2) and the removal of mature and significant trees (issue 6, which is linked with issues 7 and 12). As I have earlier said, I have concluded that the proposed development does not provide satisfactory access via Kurramatta Lane, and that the removal of many mature and significant trees would have an unacceptable impact on the natural environment, the character of the locality, and the visual aspect from the waterway, and for these reasons, development consent should be refused. It is not necessary, therefore, to deal with the remaining issues, but they were the subject of evidence and were fully argued, and it is appropriate that I express an opinion about them. I turn, first, however, to the two major issues.

It is proposed that Kurramatta Lane will be used for all vehicle ingress and egress to the site. Kurramatta Lane will also be the only means of ingress and egress for persons in wheelchairs.

Kurramatta Lane is a cul-de-sac leading from Gunnamatta Road. It has a road reserve of about 6 m in width, with a sealed carriageway of about 4 m. There is a grass verge of about 1.2 m in width on the northern side, and a kerb and gutter on the southern side. It currently provides access to Gunnamatta Road for 13 dwellings (or possibly only 12 dwellings - there was a conflict of evidence on this point, but nothing turns on the precise number).

Pedestrians, persons in wheelchairs and cyclists will use Kurramatta Lane in common with vehicles. However, it is envisaged that pedestrians and cyclists will also use the Magenwil right-of-way which provides access to Gunnamatta Road. There is a difficulty here. The Magenwil right-of-way benefits only No 10 and No 12; it does not benefit No 18. There is a doubt as to whether pedestrians and cyclists from that part of the site which comprises No 18 will have any entitlement to the use of the Magenwil right-of-way, and questions arise in any event as to the effect of an increase in use upon the terms of the Magenwil right-of-way. Indeed, there is a question in itself as to whether this Court is vested with jurisdiction to determine those questions. However, it is not necessary to determine those questions because they are peripheral to the main access issue, which is whether Kurramatta Lane provides satisfactory access for the proposed development.

The issue of access via Kurramatta Lane arises generally under s 79C(1)(c) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), which provides that the consent authority (and the Court on appeal) is to take into consideration "the suitability of the site for the development". The issue arises more specifically under cl 25(f) of SEPP 5 which relevantly provides as follows: (f) Accessibility: The proposed 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 …

Mr B Conneeley is the traffic and transport manager for the council. He estimated that the current vehicular use of Kurramatta Lane was 108 vehicle movements per day, and 10 vehicle movements per hour in peak times. He estimated that those movements would increase as a consequence of the proposed development to 196 per day and 19 per hour in peak times. (That estimate was based upon an original proposal for 22 units in the development. This has been reduced to 21 units, but, for the purpose of assessing this issue, nothing turns on the difference).

Mr B J R Masson, a consulting traffic engineer, who gave evidence for the applicant, estimated that the current vehicular use of Kurramatta Lane was 110 vehicle movements per day, and 11 movements per hour. He estimated that this would increase to 147 movements per day, and 15 per hour.

Mr Conneeley and Mr Masson disagreed as to the suitability of Kurramatta Lane for the predicted volume of vehicular traffic. Mr Conneeley considered that its narrow width would lead to reversing movements for vehicles unable to pass and would be likely to have safety and amenity impacts for the area. Furthermore, he regarded it as falling within the Australian Model Code for Residential Development ("AMCORD") definition of an "access lane" and he pointed out that a volume of 196 vehicles per day exceeds the AMCORD provision for an access lane, which indicates a maximum of 100 vehicles per day. The narrow width would also, in his opinion, present sight line difficulties for the left turn from Gunnamatta Road into Kurramatta Lane, and for the left turn from the site into Kurramatta Lane. He did not support a proposal advanced by Mr Masson to designate Kurramatta Lane as a "shared way" (meaning that pedestrians and cars would share the carriageway). In Mr Conneeley's experience, a shared way arrangement is not fully understood by motorists in the local community, and motorists are unlikely to give way to pedestrians, despite the traffic control devices which are required for a shared way arrangement.

In Mr Masson's opinion, provided Kurramatta Lane is formally designated as a shared way, with signage and strips of paving blocks or other textured paving across Kurramatta Lane at its intersection with Gunnamatta Road and across the straight section of Kurramatta Lane to the south of the site, it would operate satisfactorily for the increased volume of traffic. He considered that it would fall within the AMCORD definition of "access place" and accordingly that the predicted volume of traffic would be well within its range.

Neither Mr Conneeley nor Mr Masson dealt with the impact of the use of Kurramatta Lane for wheelchair access. However, Ms M D Laidlaw, a consultant town planner, who gave evidence on behalf of the council, expressed concerns in this regard, and thought that Kurramatta Lane was unsuitable when the needs of older people and people with disabilities are taken into account. She concluded that the proposed access arrangements were "poorly resolved and inappropriate".

Evidence on this issue was also given by Mr D J Ackroyd, who is the council's manager of community services. His opinion was that an arrangement requiring pedestrians to share Kurramatta Lane with vehicles would not provide a safe environment for an aged person. In his opinion, the proposed development does not provide "satisfactory on-site accessibility or safe pedestrian links from the site as required by cl 25(f) of SEPP 5" .

Mr G W Smith is the applicant's consultant town planner. He thought that Kurramatta Lane was suitable for wheelchair access (particularly motorised wheelchairs which he thought most of the occupants would use) and he relied upon Mr Masson's professional opinion as to its suitability for ingress and egress for vehicles and pedestrians.

Mr W J Riddington is managing director of Retirement Living Services Pty Ltd, a company which is experienced in the management of retirement villages, and which is likely to manage the proposed development if it was to proceed. He proffered the view that access via the grass verge along Kurramatta Lane would be an "easy and safe" journey. He did not accept that there were safety issues as a result of vehicles and pedestrians using internal roads, and he held the same opinion with regard to the shared use of Kurramatta Lane, since it is a dead-end cul-de-sac which is currently used by pedestrians and vehicles jointly.

A number of local residents gave evidence of their concerns about the use of Kurramatta Lane for access. Mr MacPherson said that he had concerns about the safety of the current use of Kurramatta Lane for vehicles and pedestrians (especially children and elderly persons), and he feared the increased volume of traffic would exacerbate safety problems. That view was shared by Mr Collins and Ms Wills, and also by Mr A Conwell, who lives at No 12 Kurramatta Lane.

In my opinion, the evidence supports a view that the use of Kurramatta Lane for pedestrian and vehicular access to the proposed development is unsuitable. The evidence of both Mr Conneeley and Mr Masson shows that the predicted volume of vehicular traffic will increase considerably whichever of their estimates is preferred, and there are, in my opinion, significant doubts about safety and convenience when that increase in vehicular traffic is combined with increased pedestrian use in a roadway of limited width. Furthermore, the proposed development is permissible only if it conforms with the strictures laid down in SEPP 5, and accordingly it must be considered in the context of providing accommodation for older people and people with disabilities. Wheelchair access is therefore a significant consideration, and I cannot be satisfied that the use of Kurramatta Lane will provide convenient and safe access for persons in wheelchairs.

Overall, I have concluded that the use of Kurramatta Lane for pedestrian and vehicular access is unsuitable. Viewed in isolation, that might not be sufficient to justify refusal of consent, but when considered in conjunction with the significantly adverse impact of the removal of mature and established trees, I have come to the view that development consent should be refused.

The site has a significant number of mature and established trees. They comprise remnant bushland, native and introduced trees, and they contribute to a dense upper canopy. The tree cover is particularly significant when viewed from Gunnamatta Bay, because it forms a rare and almost exclusive band of green in an area which is otherwise replete with built form right to the waterfront.

The precise number of trees located on the site is uncertain because the experts gave varying figures. But it is clear that there is a significant number of trees, in excess of 123, and that approximately 50 per cent of those trees will be removed.

The impact of that tree loss must be assessed having regard to the relevant statutory provisions. Section 79C(i)(b) of the EP&A Act requires the Court to take into consideration "the likely impacts of the development, including environmental impacts on … the natural … environments …". Under LEP 1993, the Court is required to take into consideration "the retention and enhancement of significant existing vegetation" (cl 23(e)), "any adverse impacts on the natural and built environment" (cl 23(f)) and "the impact that [the] proposed development may have on any public area or waterway from loss of sunlight, views and visual amenity" (cl 23(h)). Clause 8 of the DCP provides that " [t] he development should minimise the impact on the environment and preserve significant site features" and it states that this can be achieved by preserving existing trees.

SEPP 5 does not specifically require consideration of the impact upon the natural environment, but it contains design principles relating to "streetscape" which is defined to include "the character of a locality (whether it is a street or precinct) defined by the … visual appearance of … landscape features when viewed from the street" . Pursuant to cl 25(a), one of those design principles requires the proposed development to "contribute to an attractive residential environment with clear character and identity".

Having regard to those statutory provisions, the critical consideration in this case is the impact of the tree loss on the natural character of the site, especially from the perspective of Gunnamatta Bay. Evidence on this issue was provided on behalf of the council by Mr I J English, who is an arborist, and by Ms Laidlaw, and, on behalf of the applicant, by Mr S A Pittendrigh who is described as an arboricultural consultant and by Mr Smith.

Mr English considered that the trees on the site are "important components" of the streetscape, scenic quality and amenity value of the site, and he said that the removal of the trees would have "… a permanent and significant negative impact on the visual amenity of the area and foreshore" . He also said that the tree loss might be greater than that proposed because in his opinion a number of trees intended for preservation will fail to survive the impact of construction.

Ms Laidlaw supported Mr English's conclusions from a planning viewpoint. She said that the trees on the site "are elements which should be retained … to ensure that the character of the site and its contribution to the surrounding environment is secured". Instead, the removal of the trees will, she said, diminish the upper canopy and result in "a significant reduction to the site's landscape contribution, in terms of views from the Bay". Although trees on the site between the waterline and the foreshore building line would remain and would soften the impact to some extent, the effect of diminishing the upper canopy would remove the "green wedge" which is an important feature of this part of the waterway. Ms Laidlaw also said that the hard surface areas proposed for the site (internal roadway and driveways) would not provide adequate opportunity for re-establishment of the tree loss, despite Mr Pittendrigh's landscaping proposals.

Mr Pittendrigh conceded that a significant number of trees would be removed, but he did not agree that their removal would have the unacceptable impact which Mr English anticipated. In his opinion, some portions of some of the units would be visible from the waterway upon completion of the development, but the landscaping proposals are intended to re-establish the loss of tree cover, and would constitute effective screening over time, in say five to ten years.

Mr Smith disagreed with Ms Laidlaw's assessment. He made the point that the character of the local waterfront is largely built form and is bereft of any trees near the shoreline. He considered that the retention of trees between the foreshore building line and the waterway would have the effect that the "greater part of the proposed development will simply not be visible from the Bay". He also disagreed with the possibility that removal of trees would disturb the skyline because in his opinion few, if any, trees on the site form part of that skyline.

Mr English produced a photograph (ex 'S') upon which he sketched his estimation of the greenery on the skyline which would disappear upon the removal of the trees. Mr Pittendrigh was not prepared to accept this sketch as accurate because he thought that some of the trees shown on the photograph were off the site on Gunnamatta Road, but he conceded that it was difficult to be specific.

I prefer the evidence of Mr English and Ms Laidlaw, and their evidence seemed to me to be confirmed at the site inspection. The conclusion I have reached is that:

(a) the tree cover on the site is a significant feature of the character of the site, especially when viewed from the waterway; (b) the removal of about 50 per cent of existing mature trees is, by any measure, likely to have a significant impact on the character of the site and the natural environment; (c) there is a real risk that the tree loss will be greater in any event than about 50 per cent of existing mature trees; (d) the most unacceptable impact is the replacement of a thick and almost continuous leafy green area with elements of built form when viewed from the waterway; and (e) landscaping and appropriate planting will ameliorate the impact, but will not re-establish the existing character of the site by reason of the extensive built form that would be constructed throughout the site.

In his submissions on behalf of the applicant, Mr Tomasetti pointed to the fact that the proposed development will comply with the standards as to density and scale and landscaped area provided in cl 14 of SEPP 5, and accordingly the tree loss must be viewed as reasonable in that context. But compliance with the standards in cl 14 is not the only relevant consideration. The fact is that the proposed and potential tree loss will have a dramatic and unacceptable impact upon the character of the site and upon the site's natural environment. That fact, together with the unsuitability of the access to the site via Kurramatta Lane, requires the refusal of development consent.

I deal shortly with each of the remaining issues.

Access to shops and other services and facilities (issue 1)

In effect, cl 12(1)(a) and (b) of SEPP 5 require the proposed development to provide reasonable access for residents to shops, banks and other retail and commercial services, community services and community and recreational facilities. The council's case is that such access is not reasonably provided by the proposed development, and the applicant denies that this is so.

Although the council called a local resident, Mr R Owens, to give evidence about his experience and concern about the safety of pedestrian use of Burraneer Bay Road and other streets, this issue turned, not on topography nor on the safety of the access to those services and facilities, but on whether the walking distance to them is reasonable. In that regard, it is relevant to note that, in its "SEPP 5 Guide", the Department of Urban Affairs and Planning has nominated a walking distance of 400 m as being a reasonable guideline, and that figure is referred to in the DCP as being "a maximum".

There is a local group of shops located in Woolooware Road at the end of Cross Road, which contains, amongst other things, a post box, a newsagent, a hairdresser and a general grocery, and there is a medical practice located at the corner of Woolooware Road and Burraneer Bay Road. Mr D E Mackie, who is the applicant's architect, measured the distance to the shops as being 496 m, commencing from the top of the Magenwil right-of-way and proceeding along Gunnamatta Road and Cross Road. He measured the distance to the medical practice as 412 m, commencing from the site boundary at Kurramatta Lane along Burraneer Bay Road to where it intersects with Woolooware Road. Mr Ackroyd measured the distance to the shops as 650 m, taking in the length of the Magenwil right-of-way.

The distance to the local shops and to the medical practice is, whichever measurement is accepted, in excess of 400 m, but that figure is a guideline only. Despite Mr Ackroyd's views to the contrary, I accept Mr Riddington's assessment that the walk to the local shops is reasonably level, that the walk to the medical practice has some grade but not a severe incline, and access for the residents would be relatively easy. Considered in conjunction with the fact that the walking distance to the bus stops on Burraneer Bay Road is within 200 m, I am inclined to the view that cl 12(1)(a) and (b) is satisfied in this regard, and I would not refuse to grant development consent upon this ground.

Width of internal access road and turning area into garages (issue 4 and issue 5)

Although Mr Conneeley and Mr Masson were able to agree on some traffic matters when they met to discuss the issues together, they were not able to agree on these issues.

Mr Conneeley thought that the width of the internal access road at some points within the site was too narrow and failed to comply with AS2890.1-1993. He also thought that the turning area into the garages of units 1 - 6 was in each case inadequate in width. Mr Masson disagreed with each of these opinions. He stated that the internal access road must be assessed on the basis that it is a road and not a car park aisle, that it has been designed in accordance with good practice to be as narrow as possible to cause low traffic speeds and to reduce hard paved areas, and, in relation to the turning areas, he criticised Mr Conneeley's use of an Australian Standards turning template to assess the adequacy of manoeuvring space.

I do not regard these matters as justifying refusal of consent. If, despite Mr Masson's views, a concern remained based on Mr Conneeley's evidence, then those concerns could be adequately met by appropriate conditions of consent requiring modification of the relevant design.

Design and bulk of the development on the northern boundary (issue 8)

Units 1 through to 8, which are two storey dwellings, will be located in a terrace row running along the northern boundary for a distance of about 60 m. (I will refer to them as "the northern row of units"). The issue is whether that design results in unacceptable impacts of visual bulk and privacy.

Ms Laidlaw was of the opinion that a terrace form of development is not characteristic of the locality and is not complementary to other dwellings in the area. She said that the northern row of units would present as "a significant block of structure, stepping up the slope" and she also noted that No 14 and No 16 "will have in close proximity to them, an unbroken length of two storey terrace style development of a length and form which is uncharacteristic and uncomplementary to a low density, detached dwelling area".

On the other hand, Mr Smith thought that the proposed and existing vegetation both on the site and on No 14 and No 16 would ameliorate impacts from the northern row of units upon those houses. He agreed that a row of terraced houses would introduce a new elements into the landscape different from existing development, but he noted that SEPP 5 contemplates that development of this kind will occur in order to provide housing for older people and people with a disability, and that accordingly "some disruption to the existing characters of residential areas should be accepted".

Both Ms Laidlaw and Mr Smith considered the privacy impact of the northern row of units. There would be a 1.8 m boundary fence, and both experts were satisfied that the privacy impact from the ground level of the units would therefore be ameliorated. Amelioration of any privacy impact from the upper level can occur, as both experts pointed out, by the use of appropriate screening materials, such as translucent glass.

Mrs J Wills, who is one of the occupants of No 16, gave evidence about her concerns. She was concerned about the proposed development generally on the grounds of privacy, overlooking, noise, traffic, bulk and loss of trees. In particular, she was concerned about the bulk of the northern row of units, and their noise impact as well as their impact upon the privacy of No 16, especially upon its open air jacuzzi which is adjacent to the boundary and is presently totally private.

Some of Mrs Wills' general concerns are addressed in other issues, but, so far as concerns this issue, I am not convinced that the impact of the northern row of units upon No 16 (and No 14 as well) would be so unacceptable as to justify refusal of consent. There is no expert evidence which would support Ms Wills' concern about noise; privacy impacts can be ameliorated by imposing appropriate conditions of consent, and, whilst the row of terrace dwellings will appear as uncharacteristic and large, I think they would be within the parameters which SEPP 5 contemplates.

I have already dealt with these impacts so far as concerns No 14 and No 16.

There was, however, an issue about the visual impact of the proposed development upon Magenwil. It was not in dispute that the present water views from the ground floor and surrounding lawn of Magenwil will be obliterated, and it is likely that there will be some view loss from the upper floor. In addition, the northern row of units will provide an intrusive element to the view to the north from Magenwil in comparison with the tree cover now visible. The owner, Mr Collins, gave evidence about the importance of the views from Magenwil to himself and his family, and his general concerns about the bulk and scale of the development, and the possible increased use of the Magenwil right-of-way.

I have sympathy for Mr Collins' concerns because the view to Gunnamatta Bay from Magenwil is a splendid one, but I would not refuse to grant development consent solely by reason of the visual impact upon Magenwil. As a consequence of the large tree cover on the site, the very large expanse of lawn in front of No 12 and the topography of the site going down towards the water, Magenwil has the benefit of virtually unimpeded views, but that situation is unlikely to pertain, given the potential for some form of development upon No 12. If this present development were to proceed, the view from Magenwil would comprise some built form - at least the upper floors of units 12 - 15, and some of the front facades of the northern row of units - but, taking into account the slope of the site away from Magenwil, the vine-covered tennis court wall on the Magenwil boundary, and the tree cover which would remain, the loss of views from Magenwil would not constitute a justification for the refusal of consent.

Although this issue was not expressly abandoned by the council, it was satisfied by an amendment made during the course of the hearing pursuant to which the number of units on the southern side of the site was reduced from four to three and now comprises units numbered 16, 17 and 18. This conforms to Mr Smith's recommendation for re-design so as to improve the internal amenity of the units as originally proposed.

Removal of the structures on the foreshore lot (issue 11)

This issue did not loom large in the hearing of the appeal. It arises out of cl 14A(5) of the LEP which provides that a council (and the Court on appeal) must not consent to development on an allotment of land having a foreshore building line unless it is satisfied that any building between the foreshore building line and the present mean high water mark will be removed before or within a reasonable time of the development being carried out.

The site has a foreshore building line, and the structures erected between that line and the present mean high water mark are the boatshed, the swimming pool, the pool house and the boat basin. There is no intention to remove these structures. The question then is whether that requires the Court to refuse to grant development consent. The applicant has lodged an objection under State Environmental Planning Policy No 1 ("SEPP 1") on the basis that compliance with the development standard in cl 14A(5) is unnecessary and unreasonable in the circumstances of the case.

Clause 14(5) is subject to some exceptions. First, it does not apply to single storey boat sheds, boat launching and slipping facilities and below ground swimming pools (14A(4)(a), (b) and (c)). Accordingly, as Ms Laidlaw noted, all of the structures on the foreshore lot fall within this list, but this list does not include the brick pool house on No 12. That pool house is, as I have indicated, intended to be converted into a village centre. Secondly, it does not apply to a building if its removal would be inconsistent with the objectives of cl 14A, or is not necessary to achieve those objectives, or is unreasonable or unnecessary in the circumstances of the case having regard to the provisions of any relevant development control plan (cl 14A(6)). The objectives of cl 14A, set out in sub-cl (1), include, relevantly, restoration of the land below the foreshore building line to its natural state with a minimum intrusion of man-made structures, and a significant reduction in the number of structures below that line.

I would not refuse to grant development consent solely upon the ground that it was not proposed to remove the pool house and I would uphold the SEPP 1 objection. That building is not a dominating feature of the foreshore lot, and its removal is not, in my opinion, necessary to achieve the objectives of cl 14A.

A significant number of objections were lodged with the council, and Mr McEwen, appearing for the council, drew the Court's particular attention to 21 of them. Two of the objectors' concerns, that is, those relating to access via Kurramatta Lane and the impact of tree removal on the character of the locality and views from the waterway, were vindicated since those matters form the basis for refusal of development consent, as I have earlier set out. A number of other concerns raised by the objectors have been dealt with in connection with the other issues raised by the council.

However, one of the concerns of the objectors was not included in the council's statement of issues. That was the objection by many residents that the proposed development was a sham, in that it was medium density development only thinly disguised as housing for older people and people with a disability. They pointed to the unsatisfactory access to Kurramatta Lane, to the steep gradients of the site and to the location of bedrooms on the upper storey of units.

However, I do not think that this development application is a sham. SEPP 5 offers a dispensation for medium density development in zones where it would not otherwise be permissible, and SEPP 5 aims to encourage the provision of housing that will "increase the supply and diversity of housing that meets the needs of older people or people with a disability" (cl 3(1)(a)). In meeting that aim, any proposed development must pay more than lip service to the needs of the community group it is intended to meet. In my opinion, the proposed development would do so if it otherwise met the constraints of the site. It provides for wheelchair access in accordance with cl 13 (after some debate and amendment during the hearing), it provides at least four units adaptable to wheelchair living, the gradients of the site are not unreasonably steep, it complies with standards prescribed in cl 14 as to building height, floor space ratio, landscaped area and parking, and it provides for a community area in the refurbished pool house. I would not refuse to grant development consent upon this ground.

For the foregoing reasons, I have concluded that development consent should not be granted. My formal orders are as follows:

(1) The appeal is dismissed. (2) Development application No DA 99/678 in respect of:

(a) medium density housing for older people and people with a disability at Nos 10 and 12 Gunnamatta Road and No 18 Kurramatta Lane, Cronulla; and (b) intensification or change of existing use on lot 1 DP 659336

is determined by the refusal of consent. 3. The exhibits may be returned.

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Removal of the structures on the foreshore lot (issue 11)

64. This issue did not loom large in the hearing of the appeal. It arises out of cl 14A(5) of the LEP which provides that a council (and the Court on appeal) must not consent to development on an allotment of land having a foreshore building line unless it is satisfied that any building between the foreshore building line and the present mean high water mark will be removed before or within a reasonable time of the development being carried out.

65. The site has a foreshore building line, and the structures erected between that line and the present mean high water mark are the boatshed, the swimming pool, the pool house and the boat basin. There is no intention to remove these structures. The question then is whether that requires the Court to refuse to grant development consent. The applicant has lodged an objection under State Environmental Planning Policy No 1 ("SEPP 1") on the basis that compliance with the development standard in cl 14A(5) is unnecessary and unreasonable in the circumstances of the case.

66. Clause 14(5) is subject to some exceptions. First, it does not apply to single storey boat sheds, boat launching and slipping facilities and below ground swimming pools (14A(4)(a), (b) and (c)). Accordingly, as Ms Laidlaw noted, all of the structures on the foreshore lot fall within this list, but this list does not include the brick pool house on No 12. That pool house is, as I have indicated, intended to be converted into a village centre. Secondly, it does not apply to a building if its removal would be inconsistent with the objectives of cl 14A, or is not necessary to achieve those objectives, or is unreasonable or unnecessary in the circumstances of the case having regard to the provisions of any relevant development control plan (cl 14A(6)). The objectives of cl 14A, set out in sub-cl (1), include, relevantly, restoration of the land below the foreshore building line to its natural state with a minimum intrusion of man-made structures, and a significant reduction in the number of structures below that line.

67. I would not refuse to grant development consent solely upon the ground that it was not proposed to remove the pool house and I would uphold the SEPP 1 objection. That building is not a dominating feature of the foreshore lot, and its removal is not, in my opinion, necessary to achieve the objectives of cl 14A.

68. A significant number of objections were lodged with the council, and Mr McEwen, appearing for the council, drew the Court's particular attention to 21 of them. Two of the objectors' concerns, that is, those relating to access via Kurramatta Lane and the impact of tree removal on the character of the locality and views from the waterway, were vindicated since those matters form the basis for refusal of development consent, as I have earlier set out. A number of other concerns raised by the objectors have been dealt with in connection with the other issues raised by the council.

69. However, one of the concerns of the objectors was not included in the council's statement of issues. That was the objection by many residents that the proposed development was a sham, in that it was medium density development only thinly disguised as housing for older people and people with a disability. They pointed to the unsatisfactory access to Kurramatta Lane, to the steep gradients of the site and to the location of bedrooms on the upper storey of units.

70. However, I do not think that this development application is a sham. SEPP 5 offers a dispensation for medium density development in zones where it would not otherwise be permissible, and SEPP 5 aims to encourage the provision of housing that will "increase the supply and diversity of housing that meets the needs of older people or people with a disability" (cl 3(1)(a)). In meeting that aim, any proposed development must pay more than lip service to the needs of the community group it is intended to meet. In my opinion, the proposed development would do so if it otherwise met the constraints of the site. It provides for wheelchair access in accordance with cl 13 (after some debate and amendment during the hearing), it provides at least four units adaptable to wheelchair living, the gradients of the site are not unreasonably steep, it complies with standards prescribed in cl 14 as to building height, floor space ratio, landscaped area and parking, and it provides for a community area in the refurbished pool house. I would not refuse to grant development consent upon this ground.

71. For the foregoing reasons, I have concluded that development consent should not be granted. My formal orders are as follows:

(2) Development application No DA 99/678 in respect of:

(a) medium density housing for older people and people with a disability at Nos 10 and 12 Gunnamatta Road and No 18 Kurramatta Lane, Cronulla; and

(b) intensification or change of existing use on lot 1 DP 659336