The Winter Group Pty Ltd v Ku-Ring-Gai Council

In my judgment, and to employ the words of cl 9 of SEPP No 5, the proposed development does not provide housing that is "located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer and older people with a disability, regardless of their age".

Even "independent, mobile and active" older people inevitably become "frailer" and I cannot conceive of such frailer persons finding the proposed housing to be particularly suitable to their living needs.

As is commonly encountered when a development site is fraught with a multitude of divergent environmental constraints, I have found that the present proposal does not resolve a number of intrinsic conflicts - eg in the joint objectives of maximising existing vegetation and maximising solar access. Similarly, its concern to protect privacy along its eastern boundary by planting dense and high boundary trees, exacerbating the problem of limited solar access for the dwellings. The appeal site, being itself highly vegetated and flanked by substantial vegetation on its entire eastern and western boundaries, cannot in truth be overcome by any design solutions for the development, which is linear in form along the north/south axis.

So far as external constraints are concerned, eg (i) aesthetic impact of the proposal on Paddy Pallin Reserve, (ii) gradients of the pedestrian routes to the Lindfield Shopping Centre or to the existing bus stop in Cook Road, it is obvious that there is limited scope for design solutions to overcome such constraints.

With particular reference to cl 33(a) of the LEP, I accept Professor Weirick's opinion that the proposed development "will have a major (and unacceptable) impact in the bush atmosphere" of the southern section of Paddy Pallin Reserve which adjoins the appeal site along its entire western boundary. His reasons for that opinion were compelling, and were not diminished by the process of searching cross-examination.

My evaluation that the proposal provides unsuitable housing accommodation under SEPP No 5 on an unsuitable appeal site, also reflects my preference for the opinions proffered by the Councils expert witnesses.

At the hearing, considerable attention was directed to the question whether the appeal site had local heritage significance by virtue of the existing early 1930's "Spanish Mission" style residence and its curtilage and the cultural or social history attaching to that existing development.

In this respect, I found Professor Weirick's evidence to be very persuasive. His opinion that the existing residence and its curtilage had significant local heritage value was strongly contested by Mr Robert Staas, a heritage consultant, called by the Applicant. He too was an impressive expert witness with considerable expertise in heritage conservation. In fairness to him, he was called in late to answer the unheralded case that the appeal site had local heritage significance.

Ultimately, because of my overall evaluation of the development proposal, I have not found it necessary to adjudicate upon the rival opinions of Professor Weirick and Mr Staas. It is perhaps an unfortunate fact of timing that even the possibility of the appeal site possessing heritage significance has only come to light so very recently, virtually on the eve of the hearing of the case. I should note that upon receipt of Professor Weirick's opinion on the heritage significance of the existing development on the appeal site, the Council has resolved to acknowledge the heritage significance of the site and to "commence preliminary procedures to further consider whether the item is to be included in the heritage list". In so resolving, the Council acknowledged that such procedures could not, as a matter of timing, produce a result that would affect the outcome of the present appeal.

It is enough, perhaps, if I say that at the very least, Professor Weirick's opinion was itself sufficiently cogent, to create a potential environmental constraint for the appeal site, by virtue of the possibility of the local heritage significance of the appeal site being ultimately vindicated and officially recognised, as a result of the conventional and rigorous established procedures for heritage listing.

Coming finally to consider the public interest" element of the case, I have earlier referred to the extensive objection raised against the proposal by some 40 neighbouring residents. Their written objections were received in evidence and was supplemented by oral testimony from two nearby residents, one being Mr Paddy Pallin's son who lives at No 45 Highfield Road.

The significant extent of such opposition and the grounds for such opposition as revealed in the evidence, are in my opinion, matters of some weight. It is, in my judgment, perfectly understandable that residents living in a non-flat residential zone may wish to express concern about the character of the type and form of development proposed in the present case (which but for SEPP No 5 would be classified as a residential flat building). In the present case, the built form of the proposal with an excavated ground level having a linear dimension of some 80 m with two levels above containing three only slightly separated building modules, having themselves a collective linear dimension of nearly 70 m, is strikingly disparate from the prevailing character and built form of the neighbouring residential development in Highfield Road.

Although it may be accepted that SEPP No 5, by virtue of cl 14 purports to significantly reduce the planning discretion vested in the consent authority to refuse consent on some specific grounds (eg density or scale) where the proposal satisfies the relevant standards fixed by SEPP No 5 in that behalf, it would, in my judgment, be wrong to deduce from this fact, that resident objectors are precluded from objecting on these grounds, or that where they do, their objections count for nothing. More importantly, although it is not necessary in the present case to resolve the question, it must be regarded as an open question whether provisions such as cl 14 of SEPP No 5 can displace the entire operation of the EP&A Act s 79C(1). That section is the fundamental controlling factor in the evaluation of a development application and it is not lightly to be supposed that the Legislature intended the terms of an environmental planning instrument (a relevant consideration in terms of subsection (1)(a)(i)) to eclipse (even partially) other relevant considerations stipulated in s 79C(1) eg in the present case par (b), par (c) and par (e).

As a matter of fundamental legal principle, it is well established doctrine that absent the necessary enabling power, subordinate legislation cannot control or undermine the operation of the parent Act.

For all the foregoing reasons, I make the following orders:

1. Appeal dismissed.
2. Development consent refused.
3. Exhibits be returned.
4. No order as to costs.

ANNEXURE (2 pages) IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES No. 10845 of 1999

The Respondent says that the following issues will arise for determination at the hearing of this Appeal. 1. Whether the development is supported by the Department of Land and Water Conservation being Integrated Development requiring a Permit under Part 3A of the Rivers and Foreshores Improvement act 1948. 2. Non compliance with the provisions of SEPP No. 5 particularly with regard to:- Clause 12 - access to support services. Shops can only be accessed by walking up a steep hill over lengthy distance. AMENDED Clause 13 - (a) (iv) - wheelchair access to common areas. STATEMENT OF ISSUES Clause 14(c) - landscaped area provision. Clause 24 - (1), (2)(a), (2)(b) - Site Analysis. Clause 25 - (b)(i), (b)(ii) - visual and acoustic privacy. Clause 25- (c)(i), (c)(ii) - solar access, daylight, ventilation, design for climate, energy use. 3. Non compliance with Council's Development Control Code 1/98 - Housing for Older People and People with a Disability with particular regard to tree retention, vehicular access, parking design, waste collection and support services. 4. The effect of the proposed development on the Endangered Ecological Community - Sydney Turpentine/Ironbark Forest and particularly:- ABBOTT TOUT Solicitors Level 42, MLC Centre 19-29 Martin Pl SYDNEY NSW 2000

DX 129 Sydney TEL: (02) 9334 8555 FAX: (02) 9334 8585 REF: RKG:

. 1. the failure of the Applicant to carry out the 8 point test required by Section 5A of the Environmental Planning and Assessment Act 1979 in respect of that community; and 2. the failure of the Applicant to prepare and lodge a Species Impact Statement SIS in respect of that community as required by Section 78A(8)(b) of the Environmental Planning and Assessment Act 1979.

5. Inadequacies of the proposed development having regard to tree preservation and landscaping treatment together with design suitability of the site. 6. The height/scale/bulk of the proposed development when viewed from Paddy Pallin Reserve and its impact on the amenity of the reserve pursuant to Clause 33 (a) of the Ku-ring-gai Planning Scheme Ordinance and the likely impacts of the proposed development on both the natural and built environments pursuant to clause 79(1)(b) of the Environmental Planning and assessment Act as amended 19 December 1997. 7. The impact of the development on the adjacent natural watercourse and the adequacy of flooding analysis information having regard to impervious surfaces and the 100 year flood line and the impact on existing trees and watercourse of the required stormwater detention system. 8. The suitability of the site for the proposed development because it is considered to be an overdevelopment with limited potential for north facing habitable rooms, solar access for windows and private open space, daylight for rooms along the creek side and breezes all because of the site's topographical character and gully context. 9. Whether car parking provision is adequate having regard to design practicability and access to and form the site. 10.Whether the garbage room provision and the areas for servicing of the development by garbage collection vehicles is adequate. 11.Matters raised by resident objectors. 12.Circumstances of the case. 13.The public interest as reflected in the very large number of objections to the proposed development and the fact that the existing dwelling and garden have significant historical and cultural value. DATED January 2000 ________________________ Richard Kenneth Graham Solicitor for the Respondent

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