Land and Environment Court of New South Wales CITATION : Wylie v Warringah Council [2000] NSWLEC 75 APPLICANT: PARTIES : Roger Wylie RESPONDENT: Warringah Council FILE NUMBER(S) : 10929 of 1999 CORAM: Lloyd J KEY ISSUES: Development :- SEPP 5 application - development consent refused as development not convenient to services and facilities - unacceptable impact on adjoining properties. LEGISLATION CITED: State Environmental Planning Policy No 5, cl (1), (2) Warringah Local Environmental Plan 1985, zoning table CASES CITED: Sydney Housing Company Pty Ltd v Pittwater Council (Roseth C, 10963/98, 3 June 1999, unreported) DATES OF HEARING: 16/03/00 EX TEMPORE 03/16/2000 JUDGMENT DATE : APPLICANT: D P Wilson (barrister) SOLICITORS: Michael Roberts & Associates LEGAL REPRESENTATIVES: RESPONDENT: I J Hemmings (barrister) SOLICITORS: Wilshire Webb JUDGMENT: IN THE LAND AND Matter No: 10929 of 1999 ENVIRONMENT COURT Coram: Lloyd J with Senior Commissioner P Jensen OF NEW SOUTH WALES Decision date: 16/03/00 Wylie Applicant v Warringah Council Respondent JUDGMENT HIS HONOUR: 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the respondent, Warringah Council (which I shall call "the Council"), to consent to a development application for 12 single storey dwellings for older people and people with a disability pursuant to State Environmental Planning Policy No. 5 (which I shall call "the Policy"). On the fourth day of the hearing the applicant amended the application to reduce the number of dwellings to eleven. 2. The site of the proposed development is known as 7 Bangalla Place and 32 Forestville Avenue, Forestville. Access from Bangalla Place is available by a 66 metre long and 6.13 metre wide access strip. Access from Forestville Avenue is by a 92.6 metre long and 3.35 metre wide access strip. The total area of the development site is 4,366 square metres, but if the access strips are excluded the area is 3,620 square metres. The site slopes from east to the west, that is towards Bangalla Place, with an average slope of 1 in 7. 3. It is proposed to provide all vehicular access to the site from Bangalla Place. A pedestrian access path incorporating an inclinator and steps over part of its length will provide access to Forestville Avenue. Because the site has a steep slope the development will be carried out on three levels which will in turn involve some cut and fill together with the use of retaining walls. 4. The dwelling units are generally to be located around the perimeter of the site with internal driveways and walkways. The access driveway from Bangalla Place is relatively steep, having a grade being variously 17.9:1, 13.3:1, 5:1 and 8:1 along its length. The pedestrian pathway in the access strip to Forestville Avenue is also steep, having a grade of 14:1 and, in one section, steps. Its steepness is such that the applicant proposes to provide an inclinator for part of its length. 5. The dwellings themselves are described as self-care units and one of them is designated as being suitable for disabled persons. Three others are adaptable for persons with a disability. It seems that the applicant proposes to adopt community title for the project and the controlling body will employ a grounds and maintenance manager. 6. The site is within zone number 2(a) (Residential A) under the Warringah Local Environmental Plan 1985. The proposed development is prohibited under the zoning table for that zone by clause 9 of that instrument. It is, however, permissible with development consent under the provisions of the Policy which prevails over the local environmental plan to the extent of any inconsistency. 7. A large number of issues were originally identified as being raised in this appeal. As is commonly the case some of the issues were either resolved or not pressed at the commencement of or during the course of the hearing. I shall deal only with the issues which remain. 8. The first issue is whether the application satisfies the mandatory requirements for such a development as specified in the Policy. I refer in particular to clause 12 of the Policy. That clause relevantly provides in sub-clause 1, The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied by written evidence that the residents of the proposed development will have reasonable access to: a) shops, banks and other retail and commercial services that residents may reasonably require; and b) community services and recreation facilities; and c) health services; and d) Transport; and where appropriate: e) home delivered meals; or f) personal care and home nursing; or g) assistance with housework; or h) on-site communal meeting spaces (internal and/or external). 9. Sub-clause 2 provides: In deciding whether the level of access residents have to each facility and service listed under sub-clause (1) is reasonable (whether provided as part of the development or by an external service provider) the consent authority must consider the following: (a) the type of housing proposed and the needs of the people who are most likely to occupy that type of housing; (b) whether the type or scale of housing proposed could or may reasonably be expected to provide some facilities and services onsite in a cost effective manner; c) whether any relevant facility or service is or will be convenient to residents of the proposed housing in view of the walking distance and availability of public transport to and from the facility; d) the affordability of any relevant facility or service. 10. The first thing to note about clause 12 is (1) that it is a mandatory requirement " the consent authority must not consent unless ... . The proposed development is a relatively small one. None of the services or facilities described in paragraphs (a), (b) or (c) of clause 12(1) will be provided within the development. The site is somewhat remote from such facilities. Its walking distance is about 850 metres from the Forestville shopping centre, about 750 metres from the nearest local medical practice and about 500 metres from the local RSL Club. It is about 360 metres to the nearest bus stop in Warringah Road for south bound buses and about 550 metres to the nearest bus stop in Warringah Road for north bound buses. I have included the length of the pedestrian pathway in the access strip to Forestville Road in these distances because it would be unrealistic to ignore it. There is of course the distances of travel within the development itself to the commencement of the pathway within the access strip, but I am prepared to ignore that. 11. Can it be said that this satisfies sub-clause (2) (c) of clause 12 of the Policy? That is to say, are the relevant facilities or services convenient to residents of the proposed development in view of the walking distance and availability of public transport to and from the facility? 12. When the Policy was first introduced it resulted in the construction of many retirement villages that were largely self-supporting with services provided within the village and the needs of the residents catered for within the village. This resulted in some very large but isolated communities on the urban fringe. The Policy was substantially amended on 14 February 1998 and at the same time the Department of Urban Affairs and Planning provided a guide to the Policy. It seems clear that one of the aims of the amendments was to avoid the need for the provision of services and facilities within the development by encouraging the development of smaller scale developments for aged and disabled persons within existing residential areas and close to the facilities and services which the occupants may require, or have good access to them using public transport. This aim is fulfilled in the terms of clause 12. 13. As to location and accessibility, the guide to which I have referred states: In situations where a development is within walking distance, say 400 metres of a commercial centre the availability of public transport will be less important. The guide goes on to state that the emphasis would be on the physical accessibility of facilities. 14. In 1975 the National Capital Development Commission produced a technical paper called " Housing Requirements of the Aged, Social and Psychological Aspects ". The paper includes information obtained in a Canberra survey on resources and facilities needed by the aged and it includes the following statement: A quarter of a mile of even walking to a shopping centre containing a pharmacy, bank, supermarket and butcher is a basic and repeated request . In Sydney Housing Company Pty Ltd v Pittwater Council (10963/98, 3 June 1999, unreported) Commissioner Roseth said of a development under the Policy on a site which was about 800 metres from the nearest shopping centre and 450 to 500 metres from the nearest bus stop, that it was not within easy walking distance of the required facilities and thus did not satisfy clause 12. 15. In the present case, part of the walking distance to which I have referred is relatively steep, having a grade of 14:1 within the access strip and requiring the provision of stairs and an inclinator for part of its length. In my opinion the development must meet the needs of disabled persons as well as the elderly and of persons who are not only fit and healthy 55 year olds but are also those who are becoming progressively frail. 16. The relevant facilities and services are not convenient to residents of the proposed development in view of the walking distance. Neither are the public transport facilities convenient to residents of the proposed development in view of the walking distance. 17. The applicant attempted to meet this difficulty by offering during the hearing to provide a vehicle and to include as part of the duties of the grounds and maintenance manager the provision of twice daily vehicular trips to the Forestville hopping centre. The availability of such means of transport is to be limited to five days a week, that is, Mondays to Fridays. The residents of the development would thus not have convenient access to relevant facilities or services on Saturdays and Sundays. On those days they will be dependent on public transport which, as I have noted, is itself not within a convenient walking distance from the development. The need for the provision of transport on Mondays to Fridays as part of this development demonstrates, I think, that the development is not conveniently located to relevant facilities or services which clause 12 of the Policy requires. 18. In my opinion the Court cannot be satisfied that this development by reason of its location satisfies the requirements of clause 12 of the Policy. It follows that for this reason the application must fail. 19. I should nevertheless briefly say something about the other issues. In my opinion the impact of the proposed development on the adjoining properties numbers 6 and 5 Bangalla Place is unacceptable. I have said that the development involves some cut and fill. This would result in the construction of retaining walls on the common boundary with those adjoining properties. It is proposed to have a 1.5 metre high fence on top of the retaining walls. In the case of the common boundary with number 8 Bangalla Place, the retaining wall there is to be topped by a 1 metre high fence. 20. The buildings themselves, for part of their length, are to be set back 900 millimetres from the fence line of numbers 5 and 6 Bangalla Place. Such a setback would afford a negligible opportunity for screen planting and reliance would have to be placed on existing vegetation within numbers 5 and 6 Bangalla Place. This is in my view an unreasonable imposition on those properties. 21. In my opinion, in relation to numbers 6 and 5 Bangalla Place, the combined height of the retaining wall and the 1.8 metre high fence adjacent to the common boundary together with a building set back of 900 millimetres from that boundary is not acceptable. 22. There were other issues. In view of the findings that I have made it is not necessary to determine them. I therefore do not consider the question of access by garbage trucks, or the question of the cost of providing the necessary facilities or services, in particular the cost of providing transport on Mondays to Fridays. I should observe however that the figures provided in order to demonstrate that the provision of the facility or services are affordable seem to have been made up on the run, so to speak, and have not been supported by other data. Nevertheless I make no determination in respect of the affordability of the relevant facility or service. 23. It follows that the formal order of the Court will be that the appeal is dismissed. The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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