Symon v Hornsby Shire Council

Issues

1. The Council initially contended that the proposed development does not comply with cl 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP(SL)) and is prohibited; that an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) is not well founded; and that the path of travel from the site to public transport service nodes is unacceptable. Additional contentions related to adverse impact on the trees on adjoining properties, vehicle access and manoeuvrability throughout the site, and compliance with the design principles in Seniors Living Policy: Urban Design Guideline for Infill Development.
2. The Council's contentions relating to impact on trees, access and manoeuvrability throughout the site, and the design of the proposed development, were resolved by amendments to the design during the course of a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). The amendments to the plans included a change in the proposed path of travel from the site to public transport services on Boundary Road.
3. The Council amended its contentions, and in its Amended Statement of Facts and Contentions (exhibit 2) contends that the proposed development does not comply with cl 26 and is contrary to the aims and objectives in cll 2(2)(a) and 14 of the SEPP(SL); that the SEPP 1 objection is not well founded; that the path of travel is unacceptable; and that upholding the SEPP 1 objection and granting consent would not be in the public interest because it would affect the integrity of the SEPP(SL) having regard to the unacceptable distances to be travelled to the transport node.
4. Notwithstanding the change in position of the Council so that it no longer contends that the non-compliance with cl 26 of SEPP(SL) means that the proposed development is prohibited, and its position now is that the non-compliance is amenable to an objection under SEPP 1 (while contending that the SEPP 1 objection should not be upheld), the issue of whether compliance with cl 26 is an essential requirement for the permissibility of the proposed development or is a development standard amenable to variation under SEPP 1 is a jurisdictional matter on which the Court as consent authority must be satisfied. If cl 26 is a development standard amenable to variation under SEPP 1, the Court must be satisfied that it is appropriate to uphold the SEPP 1 objection for there to be power to grant consent.

Planning controls

1. The site is in the R2 Low Density Residential zone under the Hornsby Local Environmental Plan 2013 (the HLEP). Development for the purpose of "dwelling houses" is permissible with consent. It was common ground that no form of multi-dwelling residential development of the kind proposed is permissible in the R2 zone.
2. The SEPP(SL) applies to the site: cl 4(1)(a). SEPP(SL) prevails to the extent of any inconsistency over any other environmental planning instrument, including the HELP: cl 5(3).
3. The aims of SEPP(SL) are provided in cl 2: 2 Aims of Policy (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.
4. Chapter 3 of SEPP(SL) provides for Development for Seniors Housing. The objective of Chapter 3 is provided in cl 14: 14 Objective of Chapter The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.
5. Clause 15 provides that Chapter 3 of SEPP(SL) allows development on land zoned primarily for urban purposes for the purpose of any form of seniors housing. Clause 16 provides that development allowed by Chapter 3 may be carried out with development consent.
6. It was common ground that the proposed development is for "in-fill self-care housing", which is a form of "self-contained dwelling", as defined in cl 13: 13 Self-contained dwellings (1) General term: "self-contained dwelling" In this Policy, a self-contained dwelling is a dwelling or part of a building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in the dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis. (2) Example: "in-fill self-care housing" In this Policy, in-fill self-care housing is seniors housing on land zoned primarily for urban purposes that consists of 2 or more self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care. (3) Example: "serviced self-care housing" In this Policy, serviced self-care housing is seniors housing that consists of self-contained dwellings where the following services are available on the site: meals, cleaning services, personal care, nursing care.
7. Part 2 of Chapter 3 provides for Site-related requirements, and includes cl 26: 26 Location and access to facilities (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, bank service providers 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 that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway 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 distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Sydney Statistical Division - there is a public 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 the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or (c) in the case of a proposed development on land in a local government area that is not within the Sydney Statistical Division - 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 the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway 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 distances of no more than 1.5 metres at a time. (4) For the purposes of subclause (2): (a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause: bank service provider means any bank, credit union or building society or any post office that provides banking services.
8. Other site-related requirements in Part 2 of Chapter 3 are cl 27, which applies to development proposed to be carried out on land that is bush fire prone or in the vicinity of land that is bush fire prone, and provides that the consent authority must not consent to development on such land unless satisfied that the development complies with Planning for Bushfire Protection; cl 28, which provides that the consent authority must not consent to development to which Chapter 3 applies unless the housing will be connected to reticulated water and have adequate facilities for removal or disposal of sewage; and cl 29, which imposes an obligation to consider certain of the criteria applicable to development for which a site compatibility certificate is required under cl 24.
9. Part 3 of Chapter 3 provides Design requirements, which include cl 31: 31 Design of in-fill self-care housing In determining a development application made pursuant to this Chapter to complies carry out development for the purpose of in-fill self-care housing, a consent authority must take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004.
10. Part 4 of Chapter 3 provides Development standards to be complied with. In addition to General development standards (relating to site size and frontage, and height) in cl 40, cl 41 requires that development for the purpose of self-contained dwellings complies with standards imposed in Sch 3 to SEPP(SL). Further provision is made in Part 5 for Development on land adjoining land zoned primarily for urban purposes, and in Part 6 for Development for vertical villages. Part 7 of Chapter 3 provides Development standards that cannot be used as grounds to refuse consent.

Evidence

1. A conciliation conference under s 34 of the Court Act included a view of the subject site, Cherrybrook Road, and New Farm Road, and the path of travel as then proposed to the intersection with Boundary Road, and the alternative route along New Farm Road as now proposed in the amended development application. The parties did not reach agreement and I terminated the conciliation conference. The parties consented to me continuing to determine the matter under s 34(4) of the Court Act, and consented pursuant to s 34(12) to admission of evidence from the view and conciliation conference.
2. After the conciliation conference the applicant was granted leave to amend the application to rely on amended plans. The amendments include amendments to the streetscape, internal access arrangements for vehicles and pedestrians, and the change to the proposed path of travel from the New Farm Road frontage of the site to Boundary Road.
3. The Council notified the proposed development and received six written submissions from owners of properties in Cherrybrook Road and New Farm Road. Those submissions raised concerns as to access to public transport, maintenance of proposed pathways and resting areas, increased water run-off, traffic, visitor parking, compatibility with the residential use in the vicinity of the site, impacts on privacy, and bulk. Copies of those submissions are in evidence (exhibit 1, tab 17). The Council re-notified the amended plans, and received an emailed submission from the owner of a property next door to the proposed development, raising concerns about risks of injury for the children of his tenants, health hazards associated with construction, additional noise pollution, and damage to his property (exhibit 7). The owner and occupier of an adjoining property at 67 and 67A New Farm Road gave oral evidence in court at the hearing, stating that he is concerned that the proposed development is not compatible with a low density residential area, that its 2 storey design will result in overlooking and affect privacy, that the revised path of travel is further away and residents on the Cherrybrook Road side of the development would need to go further; his concerns remain even with the proposed provision of a chair lift at two locations on the site.
4. Expert planning evidence was provided on behalf of the applicant by Mr Michael Ball and on behalf of the Council by Mr Neil Kennan. Mr Ball and Mr Kennan prepared a joint report (exhibit 5) and gave oral evidence. Expert evidence on access issues was provided on behalf of the applicant by Mr Mark Relf and on behalf of the Council by Mr Michael Fox. Mr Relf and Mr Fox prepared a joint report (exhibit 7) and gave oral evidence. Copies of reports referred to by Mr Relf in an annexure to the joint report are also in evidence (exhibit F).

Consideration

1. It was common ground that the bus stops on Boundary Road were moved in early 2014 as part of the installation of signals at the intersection of Cherrybrook Road and Boundary Road, and that before the bus stops were moved, the distance from the site to the bus stops was within 400m. Mr Ball's evidence was that the applicant started developing the proposal before the bus stops were moved; it was common ground that the development application was lodged after the bus stops were moved.
2. It was also common ground that the bus routes travelling along Boundary Road provide access to destinations at which the services identified in cl 26(1) of SEPP(SL) are available, in accordance with cl 26(2)(b)(ii), and at the frequencies required under cl 26(2)(b)(iii); and that the proposed path of travel complies with the overall average gradient specified in cl s26(3). It was further common ground that the distance from either site frontage on New Farm Road or Cherrybrook Road to the bus stops on Boundary Road is more than 400m, that the distance on the proposed path of travel is 509m and 523m, and that the proposed development does not comply with cl 26(2)(b)(i) of SEPP(SL).
3. The applicant contends that cl 26(2)(b)(i) is a development standard that can be varied with a SEPP 1 objection, and that the objection should be upheld. In support of the submission that cl 26 is a development standard, the applicant relies on an opinion obtained from Senior Counsel (exhibit L) which, in summary, states: cl 26 is materially no different to cl 12 of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5) which was the predecessor of SEPP(SL); McClellan CJ held in Georgakis v North Sydney Council [2004] NSWLEC 123 that cl 12 of SEPP 5 was a development standard; the decision in Georgakis has not been overturned; the test applied in Georgakis, the two step test adopted in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, continues to be applied; and obiter comments from the majority in Agostino v Penrith City Council (2010) 172 LGERA 380 lend support to the proposition that a provision which controls the distance of a site from a specified point is a development standard.
4. Mr McKee on behalf of the applicant submits that Georgakis should be followed, and that in its context of Chapter 3 of SEPP(SL), which applies as a continuum across the spectrum of seniors housing including residential care facilities and hostels, cl 26 is regulating the proposed development rather than its permissibility. Mr McKee submits that the critical issue is whether or not there is a barrier to access to services, and the focus is on the objective of Chapter 3 as expressed in cl 14, and that until the Court of Appeal clarifies the law the Court should follow Poynting.
5. As noted above, the Council does not contend that cl 26 is not a development standard. In his submissions to assist the Court on the threshold jurisdictional issue, Mr Jackson submitted that it could be said that there is a material difference between cl 12 of SEPP 5 and cl 26 of SEPP(SL) in that cl 26 now requires that there be access to public transport; that it is not sufficient that distance falls within the definition of "development standard" in s 4 of the Act; and that Agostino requires consideration of the instrument to determine whether the particular provision is an essential ingredient of permissibility, so that it is in the very nature of such a development that it has bus services within 400m.
6. Georgakis was an appeal against refusal of consent for development under SEPP 5. Clause 12 of SEPP 5 was generally in the same terms as cl 26 of SEPP(SL), with some difference in the range of services for which access was required in cl 12(1), and the requirement in cl 12(2)(b) that access could comply with a transport service, rather than a public transport service, located at a distance of not more than 400m from the site of the proposed development. The distance from the site in Geogakis to the street along which the relevant bus service passed was agreed at 390m, with the distance to the outward journey bus stop 445.5m, and either 425 or 459m to the inward journey bus stop. Some of the relevant facilities referred to cl 12(1) were available within 400m of the site, but not all. McClellan CJ rejected submissions that the proposed development met cl 12 by having some, but not all, of the specified services available within 400m, and by having a relevant transport route within 400m even though it could not be accessed at any point within 400m, commenting: 17 …The requirement in cl 12 is for the consent authority to be satisfied that residents will have access to the relevant facilities, which can be provided by there being a transport service available. Availability requires a capacity to utilise the facilities at a point within the defined distance. It is not sufficient that it merely passes the site. So much is plain from the purpose of the clause, which is to ensure that aged and disabled people are not isolated by residing at an excessive distance from necessary facilities or transport to those facilities.
7. McClellan CJ continued: 40 Applying the approach adopted by Giles JA in Poynting and applied in Lowy, it is appropriate to ask in the present case whether the proposed development is prohibited under any circumstances. Plainly it is not, for the land could without question be developed for the intended purpose if the nearest bus stop was closer to the site. If the size of the allotment is not a complete prohibition, then the distance from a given point cannot be a complete prohibition. 41 Turning to the second step, the relevant provision fixes the distance of the land from a specified point, as it happens a bus stop, and provides for the services, facilities and amenities demanded by the development. 42 Because of the definition of development standards in s 4 of the Environmental Planning and Assessment Act 1979 (NSW) the distance to a bus stop and requirements in relation to services are both aspects of the development. The relevant parts of the definition are as follows: "Development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of the development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, ... (m) the provision of services, facilities and amenities demanded by development." 43 It follows that although the development is not absolutely prohibited, by a combination of clauses 12(1) and (2) of SEPP 5 it is subject to a requirement that access to the relevant facilities be within 400 metres. This is an aspect of the development and, accordingly, a development standard amenable to dispensation pursuant to SEPP 1.
8. The reference to Poynting is to the two step approach articulated by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319: 96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of 'development' in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. 97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of "development standards", there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. … 99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in pars (a)-(n) of the definition of 'development standards' in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. …
9. In Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130, Basten JA discussed the two step approach (at [85] and [100]-[103]) and concluded that the critical question in determining whether a particular provision is a development standard or a prohibition involves "defining the elements of the proposed development which were the essential elements in the context of the LEP". Ipp JA commented: 16.Basten JA has drawn attention to inherent difficulties with this process. The authorities hold that, in determining whether a requirement is a development standard or a prohibition, one must first identify the development. The authorities hold, further, that a requirement relating to a development is a development standard unless it is a prohibition. If one, following this approach, identifies the development and decides that a requirement relating thereto is not a prohibition, the answer must inevitably be that the requirement is a development standard. On this scenario, there is no second step to complete.
10. An alternative approach was adopted by the majority of the Court of Appeal in Agostino v Penrith City Council (2010) 172 LGERA 380, after the decision in Georgakis. Tobias JA, with whom Giles JA agreed, held: 45 In Lawrence Browning Basten JA (at [102]), when dealing with the proper identification of the development proposed in that case, observed: "Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different." 46 In the present case, what one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which cl 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus as Giles JA observed in Lowy at [116], it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance: Poynting at [93]. … 50 … Before one comes to the definition of "development standards" one is required to determine precisely what is the permissible or, as Giles JA described it in Poynting at [97], the "non-prohibited" development. For it is only when one determines what precisely is permissible that one can measure that which is proposed against it in order to determine whether it is permissible or prohibited: if you like, the first step described by Giles JA in Poynting. 51 Furthermore, controlling development by the imposition of development standards as contemplated by s 26(1)(b) in the EP&A Act is only relevant to a development that is otherwise permissible. It is an oxymoron to suggest that a development that is controlled by way of a prohibition (see the definition of "control" at [23] above) can also be controlled (regulated) by a development standard. Accordingly, it is only once one has determined what is permissible that one can then consider whether that which is proposed is permissible and, if it is, whether any other regulatory controls are development standards (as defined) for the purpose of applying SEPP No 1.
11. McClellan CJ at CL was in dissent in Agostino. His Honour agreed with the criticism of the two stage process of analysis, and held (at [71]) that: …The only question which must be answered is whether the relevant provision comes within the definition of a development standard, which requires consideration of the definition and particular provision. It will not be answered by seeking to describe the provision as either a development standard or a zoning provision. That approach as, with respect, the majority decision in the present case illustrates is productive of error. By asking first whether the control operates as a prohibition is to ask the wrong question. Every requirement or standard amenable to SEPP 1 will be a prohibition.
12. The most recent judicial consideration of the approach to be adopted in determining whether a provision in an environmental planning instrument is a development standard or prohibition is that undertaken by Pepper J in Wilson Parking 1992 Pty Ltd v Council of the City of Sydney [2014] NSWLEC 12, an appeal under s 56A of the Court Act from a decision of a commissioner dismissing an appeal against a refusal of development consent for use of a site as a temporary car park. Clause 66(1) of the Sydney Local Environmental Plan 2005 provided a number of criteria to be met before the granting of development consent for public car parking; and cl 66(2) provided that consent "may be granted" for new public car parking, "but only where the consent authority is satisfied that the public car parking directly services major retail, cultural, recreational or entertainment uses which, in the opinion of the consent authority, are not reasonably or adequately serviced by …public transport … or existing public car parking". The commissioner had adopted the two-step approach in Poynting and concluded that cl 66(2) was a prohibition and not a development standard. On the appeal, Pepper J concluded that having failed to be satisfied as to the matters specified in cl 66(2), consent could not be granted under cl 66(2) irrespective of whether or not that clause was a development standard; SEPP 1 was not engaged, and the discretionary power to dispense with any development standard was not available. Her Honour went on to consider the other issues on the appeal, including whether the commissioner had erred in finding that cl 66(2) was a prohibition and not a development standard.
13. Pepper J noted (at [29]) that there was controversy between the parties as to the proper test to be adopted, which was understandable "given the inconsistent approaches followed in the case law on this vexed issue". Her Honour noted that the two-step approach in Poynting had been endorsed (referring to Lowy v Land and Environment Court of New South Wales [2002] NSWCA 353; (2002) 123 LGERA 179 at [117], Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 at [61], Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 67 NSWLR 672 per Tobias JA at [35] and Huang v Hurstville City Council (No 2) [2011] NSWLEC 151 at [21], undisturbed on appeal: Huang v Hurstville City Council [2012] NSWCA 177 at [12] and [15]), and had also been the subject of rebuke (referring to Lawrence Browning per Ipp and Basten JJA at [100]-[103], and [85]). At [35] her Honour referred to Basten JA's approach in Lawrence Browning, concluding: 35 Thus if the provision is a zoning criterion, and if the developer's proposal contravenes that criterion, the provision should be regarded as an outright prohibition and not a development standard. This was essentially the basis of the decision in Woollahra Municipal Council v Carr (1985) 62 LGRA 263.
14. Pepper J noted (at [37]) that in Lawrence Browning Ipp JA had enthusiastically endorsed the "zoning criterion" test; and noted the comments of McClellan CJ at CL in Agostino (in dissent) endorsing Basten JA's criticisms but electing not to follow his approach. Pepper J noted (at [38]) the views of the majority in Agostino (Tobias JA, with whom Giles JA agreed), and concluded: 39 It was the view of Tobias JA that Basten JA's approach simply required a determination of the essential elements of the permissible development. That is to say, if the criterion engaging the operation of a prohibition on a particular development was an essential element of that development, rather than a standard or requirement in respect of an aspect of the development, then the provision was not a development standard (at [30]).
15. At [40] Pepper J posed the question of where "this unhelpful divergence in methodology" left the appeal, and continued: 41 In my opinion, until such time as the Court of Appeal clarifies the position, I propose to adopt the approach employed by Pain J in Huang (No 2), which was essentially to follow the test in Poynting, as refined in Chase (at [61], quoted above). My reasons for doing so are three-fold: first, Huang (No 2) is the most recent articulation of the test in this Court; second, her Honour's use of the Poynting test is not, in my opinion, plainly wrong and as a matter of judicial comity should be followed (Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [278]-[282]); and third, her Honour's decision was upheld on appeal. 42 What is not controversial, irrespective of whatever test is used, is the need to properly construe cl 66(2) of the LEP in context in order to discern the intention of the instrument (indeed so much so is enshrined in cl 4 of the LEP). When undertaking this exercise, the authorities emphasise that care must be taken not to elevate form over substance.
16. The reference to the refinement of Poynting is to the adoption by the Court of Appeal in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323 of Jagot J's summary of the principles articulated in Poynting in the first instance decision of Laurence Browning (Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [26]-[31]) (at [61]): 61 It is convenient to set out the following propositions adopted by her Honour as I regard them as accurately summarising the principles articulated by Giles JA in Poynting: "(1) The provision in question must be "seen as part of the environmental planning instrument as a whole" (Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182-183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development (Poynting at 333-334 [58]). (3) Although [there is a distinction] between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" (Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. (Poynting at 343 [98]). (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" (Carr at 269-270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" (Poynting at 343 [99])."
17. In considering cl 26 in SEPP(SL) against the background of the differing approaches highlighted in Wilson Parking, and in particular noting Pepper J's conclusion at [42], the starting point is the definition of "development standards" in s 4 of the Act: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, … (m) the provision of services, facilities and amenities demanded by development, …
18. Clause 26 includes requirements for both the distance of the site from the bus stops, and the range of services required. However, the fact that cl 26 includes provisions that fall within (a) and (m) of the definition of "development standards" does not alone mean that it is a development standard.
19. Clause 26 must be considered in its "wider context" of the environmental planning instrument as a whole. While there are substantial similarities between SEPP 5 and SEPP(SL), in my view there are significant differences, which would not preclude a different conclusion to that reached by McClellan CJ in Georgakis.
20. Chapter 3 of SEPP(SL) covers the broad spectrum of development for seniors housing, as is made clear by the statement of objective in cl 14. Clause 15 sets out what Chapter 3 does, in the following terms: 15 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy: (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.
21. Clause 16 provides that development "allowed by" Chapter 3 is permissible with consent. While Part 1 of Chapter 3 provides General requirements, Part 2 provides four Site-related requirements, including cl 26. Part 3 provides Design requirements. Part 4 provides Development standards to be complied with, while Part 7 provides Development standards that cannot be used as grounds to refuse consent. Importantly, SEPP(SL) separates site-related requirements (Part 2) and Development Standards (Parts 4, 7). In SEPP 5, in contrast, clauses 12 (matters for consideration), and clauses 13 (Development standards - building height and street frontage) and 13A (Development standards - access and useability), were all contained in Part 2 of the SEPP under the heading "Development Criteria", described by McClellan CJ in Georgakis at [45] as all providing "elements of potential development on land to which the policy applies".
22. SEPP(SL) operates to make development for housing for seniors and people with a disability permissible where the otherwise applicable planning controls would prohibit such development (cll 2(2)(a), 15). If the approach in Agostino is applied, cl 26, as one of three site-related requirements for development permissible under Chapter 3, can be regarded as serving a zoning function analogous to that served by the relevant provisions in Agostino and Huang, held not to be development standards, which had been inserted into the relevant local environmental plan to provide permissibility for the specified uses in closely defined circumstances.
23. Having regard to these factors, the proximity to services and transport specified in cl 26 as a site-related requirement could be regarded as a requirement of the development, or, in the language of Agostino, an essential element of the development, rather than a standard in respect of an aspect of the development. If so, it is not a development standard amenable to an objection under SEPP 1. I acknowledge that the matter is not free from doubt. In support of that view, I note that in Georgakis, which was decided before the Court of Appeal decision in Agostino, McClellan CJ noted (at [44]) that but for the decision of the Court of Appeal in Poynting (confirmed by Giles JA, with whom Mason P agreed, in Lowy), "there may have been force" in the submission that rather than being an aspect of the permissible development, cl 12 defined a characteristic of the land without which the development was prohibited on the land. A counter consideration, however, is the obiter comment by Tobias JA in Agostino (at [20]) that the Council had properly conceded that cl 18 of the applicable local environmental plan, which provided that the Council could only grant consent to the establishment of convenience or general stores on land where "…the store is more than 3 kilometres from another general store or convenience store in the area", constituted a development standard. The difference may simply be that cl 18 applied to specified types of development that otherwise were permissible in accordance with the zoning, whereas cl 26 is a site-related requirement, distinguished in SEPP(SL) from development standards to be complied with and development standards that cannot be used as grounds to refuse consent.
24. However, even if, as the applicant submits and the Council accepts, cl 26 is a development standard, in order for there to be power to grant development consent it would be necessary to be satisfied that the SEPP 1 objection to compliance with that standard should be upheld. For the reasons below I am not satisfied that the SEPP 1 objection should be upheld. In those circumstances, and given that the question was not contested between the parties, with a consequent full argument, it is preferable not to express a concluded view on the question of whether cl 26 is a development standard amenable to variation by an objection under SEPP 1.

SEPP 1 Objection

1. In Wehbe v Pittwater Council (2007) 156 LGERA 446, Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of SEPP 1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection.
2. The SEPP 1 objection (exhibit H) argues that the locations of the two bus stops are such as to achieve the objectives of the development standard, and the distance from the site is acceptable and reasonable. The objection argues that strict compliance would be unreasonable because the extra distance is compensated for, or overcome, by reference to the new pedestrian footpath with gradients easily complying with those specified in cl 26(2) to provide an obvious, safe and attractive and convenient path of travel; construction by the applicant of rest areas, being a seat and shelter at one bus stop and a seat 210m from the site in the Council reserve; existing provision of a comfortable covered structure with seating at the east bound bus stop and similar proposed for the western bus stop; no adverse impact for those using a motorised wheelchair or scooter; traffic lights for safe and convenient access to the eastern stop; pleasant amenity of the path of travel on well landscaped road reserves; accessible and safe pedestrian travel with appropriate resting points; a proposed average gradient of 1:53, with the steepest part of the journey being 1:16 (directly adjoining the site); and less stamina required to walk the route with moderate gradients than that required with the permitted average gradient of 1:14 for a route of 400m. The SEPP 1 objection notes that the current locations of the bus stops, with the signalised crossing of Boundary Road, provides a significantly safer access for pedestrians, especially older people or people with disability.
3. The argument that strict compliance with the development standard is unreasonable or unnecessary because the proposed development will achieve the objectives of the standard is the first of five ways identified in Wehbe in which compliance a development standard might be shown to be unreasonable or unnecessary. The rationale to this approach is that development standards are not ends in themselves but means of achieving ends, and those ends are environmental or planning objectives: 43. ...Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
4. The SEPP 1 objection notes that there are no stated objectives for the development standard, and argues that the underlying town planning objectives are: (a) To ensure that older people and people with disabilities have access to public transport or shops and services and are able to walk to or travel to bus stops and services by electric wheelchair or motorised cart. (b) To provide suitable pathways to access a transport service to shops, services or facilities as set out in clause 26(2) of the SEPP. (c) To have obvious and safe pedestrian links from the site that provide access to public transport services or local facilities as set out in clause 38(a) of the SEPP. (d) To provide attractive, yet safe, environments for pedestrians and motorists for convenient access and parking for residents and visitors as set out in clause 38(b) of the SEPP.
5. In his contribution to the joint report (exhibit 5, 5.24- 5.26) Mr Kennan was of the opinion that (c) and (d) are not objectives of the standard, as cl 38 of the SEPP relates to the design of the development to which the SEPP applies, and not to the objectives of the development standard. While he accepted that (a) and (b) are relevant to a degree, in his opinion regard must also be had to the aims of SEPP(SL) itself and the objective of Chapter 3 of SEPP(SL) as stated in cl 14. In oral evidence Mr Ball, who was one of the authors of the SEPP 1 objection, accepted that cl 14 has work to do.
6. I accept Mr Kennan's approach, which was ultimately agreed, that the underlying objectives of the standard in cl 26 are to be derived in the context of Chapter 3 as expressed in the objective in cl 14, which requires a focus on the design and location of housing intended to serve the needs of both independent and mobile seniors and those who are frail or have a disability. In that context, the underlying objective of the standard in cl 26 is appropriately expressed in (a) and (b) above, that is, ensuring access to the appropriate services and facilities, by means that are appropriate. That is consistent with the objective as expressed in Georgakis (at [17]) by McClellan CJ, that the purpose of cl 12 of SEPP 5 was "to ensure that aged and disabled people are not isolated by residing at an excessive distance from necessary facilities or transport to those facilities".
7. The applicant does not rely on provision of infrastructure in the form of the proposed footpath as justifying a departure from the 400m criterion, acknowledging that those works are required to provide a "suitable access pathway" as defined in cl 26(4) of SEPP(SL), irrespective of whether the distance is 300m or 500m from the bus stops. However, the applicant does rely on the provision of the seat in the Council reserve and the bus shelter on Boundary Road.
8. In his contribution to the access experts' joint report (exhibit 6). Mr Relf was of the opinion that the proposed development meets the objectives of cl 14, which covers at least three broad demographic profiles of seniors who are independent, mobile and active; those who are frail; and other people with a disability regardless of their age. In his opinion the stated transport alternatives mentioned in the objection (being buses on Boundary Road, car trips operated by residents, neighbours, friends and family, taxis, and potentially other community services) would be used by all the residents at some time of their life and the alternatives support the philosophy of ageing in place, and it is evident from the scope of development types permitted by the SEPP that very few if any residents of an aged care facility would ever travel independently on public transport.
9. Mr Relf did not consider the distances to the bus stops to be unacceptable, and considered that they are not an absolute barrier to public transport and can reasonably serve the future residents whether they are ambulant or use motorised mobility aids. Mr Relf considered a range of factors including the history of the 400m standard, Australian Standard AS1428.2 (1992), ability to travel 400m or more including slope, distance, rest stops and common expectations regarding distance to public transport, and the Cherrybrook Road vs New Farm Road route.
10. In an annexure to the joint report ("Pedestrian Travelling Distances to Public Transport for Over 55's and People with Disabilities"), Mr Relf stated that the requirement for 400m distance was introduced in SEPP 5 in 2000, and while its inclusion was unclear, it is evident from a literature search that 440 yards or 400m has been used extensively worldwide as a planning tool for design of urban environments and public transport systems. Mr Relf referred to a number of studies of average walking distances to public transport from which he concluded that older people in the general community walk in excess of 400m to public bus transport and therefore the planning requirement of SEPP(SL) may be out of step with the general community and could be reconsidered in future revisions of the policy. Mr Relf referred to cl 7 of AS1428.2 (1992) which provides information on the distances people with a range of disabilities (people using wheelchairs, with vision impairment, using walking aids, and ambulatory people) can move without a rest. He considers that AS1428.2 (1992) is of limited relevance when considering the scope and requirements of SEPP(SL) in relation to people using wheeled mobility aids. Mr Relf considered that there is a relationship between distance and slope which triggers the need for rest stops, for example AS1428.1 (2009) which specifies that a 1:14 ramp requires a rest landing every 9m, a 1:20 walkway requires a rest landing every 15m, and walkways of 1:33 or less require no rest landings. In the public domain pedestrian areas this level of prescription is not always achievable hence cl 26(2) of SEPP(SL) which requires 1:8 for 1.5m, 1:10 for 5m, 1:12 for 15m and 1:14 continuously. Clause 26(4) was introduced in 2007 and targets the scope firmly on motorised mobility devices. At no stage has SEPP(SL) attempted to regulate or recommend ideal footpath gradients for people who are ambulant regardless of age, gender, mobility or ability. Mr Relf referred to studies of energy expenditure in level and grade walking, concluding that while the New Farm Road route is longer than the Cherrybrook Road route, older people and people with a disability would be more able to travel the distance especially with designated rest stops as proposed.
11. Mr Fox considered that there is clear evidence that 400m is the maximum walking distance for people with a range of disabilities, including AS1428.2 (1992) and the Sydney 2000 Access Guidelines; that international research supports a maximum of 400m to bus stops; and that urban planners typically assume that people of all ages will comfortably walk approximately 400m.
12. Mr Relf and Mr Fox discussed in their oral evidence the reliability of the research underpinning AS1428.1 (1992), and the other research referred to in the joint report, some of which is in evidence (exhibit F). In Mr Relf's opinion AS1428.1(1992) is about functional ability, not age, and design using ramps with rest landings because of fatigue. In his opinion, if SEPP(SL) allows an average gradient of 1:14 over a continuous slope for 400m, on a more moderate gradient it should be possible to go further.
13. The difficulty with much of the discussion of the literature referred to in the joint report and in Mr Relf's annexure (and provided in exhibit F) is that it addresses distances people of all ages are willing to walk to access public transport in preference to alternatives; and the report on "Senior Victorians and walking: obstacles and opportunities" (Victoria Walks, 2013) addresses the health and well-being benefits of walking for older adults and measures to encourage walking for health and transport. The objective of cl 26, on the other hand, is on ensuring that both independent and mobile seniors and those who are frail or have a disability have access to appropriate services and facilities, by means that are appropriate. A further, more fundamental, difficulty with this evidence is that the issue before the Court is whether it is appropriate in the circumstances of this application to depart from the requirement of a maximum 400m distance, and not whether there is an underlying issue with how the standard came about or how it should be framed. As confirmed by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226, the Court is not entitled to take the view that standards set, in that case by the applicable development control plan, are inappropriate for reasons of general policy. To the extent that the arguments of Mr Relf, and the literature he relied upon, go to the question of the appropriateness of the standard, there is a risk that the Court would be in the position of using a SEPP 1 objection as a means to effect a change to the standard itself, analogous to the concern expressed by Preston CJ at [51] in Wehbe that the dispensing power under SEPP 1 is not to be used to effect general planning changes.
14. In his contribution to the planners' joint report (exhibit 5, 5.18) Mr Ball was of the opinion that the objection is well founded, because the objection deals with both the distance and gradient provisions of cl 26(2); the pathway is suitable for wheelchair and pedestrian travel; the proposal will contribute to the social and economic welfare of the community as set out in the objects of the Act; and occupants of such a development are more likely to accept and use an attractive path of travel over a longer distance than they would a shorter, unappealing one. Mr Kennan disagreed with the reliance on the gradient of the path of travel to justify non-compliance, as in his opinion compliance with both distance and gradient is required; in his opinion whether a person using a scooter or motorised wheelchair could travel further than 400m is not the test of whether the objective of the 400m standard is met having regard to persons who may not be in a motorised wheelchair or scooter but who would have real difficulty in travelling a distance greater than 400m; and the landscaping and attractiveness of the route is irrelevant to the distance to be travelled. Mr Kennan did not consider that any planning reason had been demonstrated that compliance with the 400m standard would hinder attainment of the relevant objects of the Act.
15. Having regard to this particular proposed development, which is designed as in-fill self-care housing where no services such as meals are to be provided on site as part of the development, and where the closest shopping facilities are 2.3km away, I am not persuaded that the proposed development achieves the objectives of the standard in cl 26. It meets the gradient aspect of the requirements, however cl 26(2) requires compliance with both gradient and distance. I accept that a person in a motorised wheelchair or scooter may be able to travel the additional distance above 400m without difficulty. I accept that the addition of a seat in the Council reserve may provide a resting point, and the provision of a bus shelter on the western side of Boundary Road would provide shelter while a person waited for a bus. However, a person not in a motorised wheelchair or scooter who is unable to call upon private transport would still be required to walk more than 500m before obtaining shelter and access from that point to a public transport service to obtain access to any of the services identified in cl 26(1). That is not in my view consistent with the objective of ensuring access to appropriate services and facilities by appropriate means.
16. The aims of SEPP 1 are provided in cl 3, being to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act. The SEPP 1 objection argues that strict compliance is unreasonable because the extra distance is compensated for or overcome by the factors set out in paragraph [50] above: the extra distance is not excessive, the travel time is acceptable, the overall gradient of the pathway is moderate; and the convenience of the pedestrian travel would be similar if not better than a standard 400m trip along arterial roads or highway that would comply with cl 26(2)(a). However, cl 26 does not require consideration of the time taken to travel the path to the transport node, and in any event that time would clearly vary depending on the frailty or stamina of the person undertaking the journey and whether they use a motorised wheelchair or scooter or other mobility aids. I agree with Mr Kennan that the grounds stated for non-compliance are general in nature, and not particular to this parcel of land. As noted by Preston CJ in Wehbe at [79], to uphold a SEPP 1 objection on grounds that are general in nature and that would be applicable to many sites in the locality, and that are not particular to the circumstances of this land, would create an adverse planning precedent for similar action in relation to other such land, and thus affect the integrity of the planning policy embodied in the development standard. That would not assist in the attainment of the object specified in s 5(a)(ii) of the Act which is to encourage "the promotion and co-ordination of the orderly and economic use and development of land".
17. I am not satisfied that the applicant has established that compliance with the standard in cl 26(2) of SEPP(SL) is unreasonable or unnecessary in the circumstances of this proposed development. I am not satisfied that the SEPP 1 objection should be upheld. Upholding the SEPP 1 objection is a precondition which must be satisfied before the proposed development can be approved on a consideration of the merits, and the proposed development cannot be approved. This conclusion makes it unnecessary to address the Council's contentions concerning the acceptability of the overall distance of travel for residents of dwellings on the northern part of the site when travel within the site is included; and whether the internal access arrangements with path of travel across driveways rather than on a distinct pedestrian pathway comply with the design principles of the Seniors Living Policy: Urban Design Guideline for Infill Development.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development application No 452/2014 for the demolition of two existing dwelling houses and the construction of a seniors living development on Lot 93 DP 3118 and Lot 75 DP29637 knows respectively as 20 Cherrybrook Road and 69 New Farm Road West Pennant Hills is refused. 3. The exhibits are returned except for exhibits A, B,C and 2. Linda Pearson Commissioner of the Court

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. Decision last updated: 27 February 2015