The planning controls
18The site is zoned Rural BA (Small Holdings - Agricultural Landscapes) under Hornsby Local Environmental Plan 1994 (the LEP). The objectives of the zone are:
(a) to restrain population growth, maintain the rural character of the area and ensure that existing or potentially productive agricultural land is preserved.
(b) to promote agricultural use of land and provide for a range of compatible land uses which maintain the agricultural and rural environment of the area.
(c) to ensure development is carried out in a manner that improves the environmental qualities, and is within the servicing capacity, of the area.
19Residential development, other than for the purpose of a dwelling-house is prohibited in the zone.
20The application is made under SEPP 2004 which permits housing for "seniors living" on land adjoining land zoned primarily for urban purposes (cl 4(1) and (4) where certain forms of development are permitted with consent, in this case, dwelling houses and includes provisions that the policy applies in the event of an inconsistency with any other environmental planning instrument (cl 5(3).
21Relevant definitions of self-contained dwelling and s erviced self-care housing are provided in cl 13 as follows:
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.
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.
22Clause 17 of SEPP 2004 applies to development on land adjoining land zoned primarily for urban purposes and provides that consent can be granted to development on such land for the purposes of a hostel, residential care facility or serviced self-care housing provided other relevant provisions within the policy are met. In the case of the latter, the consent authority must be satisfied that the housing will be provided for people with a disability or in combination with a residential care facility or as a retirement village (within the meaning of the Retirement Villages Act 1999 ).
23Part 1A of SEPP 2004 introduces a requirement that a site compatibility certificate is obtained where the development is proposed on land that adjoins land for urban purposes and that development is not permitted with consent. In determining whether consent should be granted, cl 24(2) requires:
(2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the Director-General has certified in a current site compatibility certificate that, in the Director-General's opinion:
(a) the site of the proposed development is suitable for more intensive development, and
(b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25 (5) (b).
24Clause 24(3) states:
(3) Nothing in this clause:
(a) prevents a consent authority from:
(i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or
(ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or
(b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies.
25At the time the application was lodged, cl 24(3)(a)(ii) had been repealed, however it was reinstated on 29 July 2011 and, in accordance with the savings and transitional provisions contained in cl 54, the subclause applies to applications made but not determined. Accordingly, it is open to the Court to refuse the application in the event that it determines that the proposed development is not compatible with the surrounding environment despite the site compatibility certificate having been issued for the application. Clause 25(5)(b) provides guidance of those matters which must be considered by the Director-General in determining whether the proposed development is compatible with the surrounding land uses. They include, but are not limited to the following:
(i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development,
(ii) the impact that the proposed development is likely to have on the uses that, in the opinion of the Director-General, are likely to be the future uses of that land,
(iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision,
(iv) in the case of applications in relation to land that is zoned open space or special uses-the impact that the proposed development is likely to have on the provision of land for open space and special uses in the vicinity of the development,
(v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development,
(vi) if the development may involve the clearing of native vegetation that is subject to the requirements of section 12 of the Native Vegetation Act 2003 -the impact that the proposed development is likely to have on the conservation and management of native vegetation.
26Clause 26 of SEPP 2004 requires:
(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.
Subclause (2) establishes how an application can comply with these access requirements.
27Clause 28 relates to water and sewer as follows:
(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 the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.
(2) If the water and sewerage services referred to in subclause (1) will be provided by a person other than the consent authority, the consent authority must consider the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure. In locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development.
28Part 5 of SEPP 2004 is specific to development on land adjoining land zoned primarily for urban purposes to be used for serviced self-care housing. Clauses 42-44 state:
42 (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:
(a) home delivered meals, and
(b) personal care and home nursing, and
(c) assistance with housework.
(2) For the purposes of subclause (1), residents of a proposed development do not have reasonable access to the services referred to in subclause (1) if those services will be limited to services provided to residents under Government provided or funded community based care programs (such as the Home and Community Care Program administered by the Commonwealth and the State and the Community Aged Care and Extended Aged Care at Home programs administered by the Commonwealth).
43 (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development:
(a) that will drop off and pick up passengers at a local centre that provides residents with access to the following:
(i) shops, bank service providers and other retail and commercial services that residents may reasonably require,
(ii) community services and recreation facilities,
(iii) the practice of a general medical practitioner, and
(b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.
(2) Subclause (1) does not apply to a development application to carry out development for the purposes of the accommodation of people with dementia.
(3) In this clause, bank service provider has the same meaning as in clause 26.
44 A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage.
29SEPP 2004 also includes a number of development standards that, if met, cannot be used as reasons to refuse an application and a number of design standards.