Land and Environment Court of New South Wales CITATION : Sandlix Pty Limited & Anor v Hurstville City Council [2000] NSWLEC 87 APPLICANT Sandlix Pty Limited & Anor PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10754A & 10842A of 1999 CORAM: Cowdroy J KEY ISSUES: Section 56A Appeal :- Condition of consent prohibiting visitor parking on-site - Commissioner's judgment not recording apparent inconsistency between requirements of SEPP 5 and such condition - condition formulated at conclusion of hearing without opportunity for council to make submission - inconsistency between condition prohibiting parking and other conditions - matter remitted to Commissioner for consideration of SEPP 5 requirements relating to visitor parking. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 CASES CITED: DATES OF HEARING: 17/4/00 EX TEMPORE 04/17/2000 JUDGMENT DATE : APPLICANT Mr P Rigg (Solicitor) SOLICITORS Deacons Graham & James LEGAL REPRESENTATIVES: RESPONDENT Ms J Kelly (Barrister) SOLICITORS Jacovou & Co JUDGMENT: IN THE LAND AND MATTER No. 10754A & 10842A of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 17 April 2000 Sandlix Pty Limited & Neil C G Applicant v Hurstville City Council Respondent JUDGMENT 1. This is an appeal under s 56A of The Land and Environment Court Act 1979 brought by Hurstville City Council, ("the council") against the decision of Commissioner Watts delivered on 3 February 2000. Commissioner Watts granted development consent to the applicants ("the applicants") subject to conditions in respect of two development applications relating to premises known as number 64 and 68 Stoney Creek Road, Beverly Hills ("the sites"). 2. In each case the development was made pursuant to State Environmental Planning Policy No 5 ("SEPP 5") - housing for older people or people with a disability for the development of seven units on the two sites. 3. Each of the sites has a frontage onto Stoney Creek Road which is a State road. The sites are narrow and as shown on a plan tendered in evidence a driveway would be constructed along one side of each of the proposed buildings to enable the occupants to drive from Stoney Creek Road, travel down the driveway and turn into the garage applicable to each unit. 4. The plans allow for one visitor car space on each site which is located towards the front of the development, the end closest to Stoney Creek Road. Commissioner Watts in his decision imposed a condition, namely condition 70 which provides as follows:- Visitor carparking is not permitted on site. A sign is to be displayed at the entrance to the site in terms "no visitor parking permitted on site". 5. During the course of the hearing before Commissioner Watts, evidence was led to the effect that if the visitor car space was occupied any other vehicle (which did not have a garage) would be unable to turn around in the driveway. Accordingly, it would be necessary for that vehicle to reverse out of each site to Stoney Creek Road. 6. In re-examination before Commissioner Watts, as appears from the transcript, a question was asked of a traffic expert whether in such circumstances it would be preferable to prohibit visitor parking on site to thereby eliminate the reversing of vehicles into Stoney Creek Road. As a result of such re-examination condition 70 was included in the conditions. There is some doubt as to whether it was formulated by counsel for the applicant or by the Commissioner but in the circumstances it does not matter. 7. By notice of motion filed on 2 March 2000, the council seeks various orders in its appeal against Commissioner Watts. The grounds relied upon are firstly that the Commissioner failed to take into consideration the contents of cl 12(1) of SEPP 5 and particularly sub paragraphs (e), (f) and (g) thereof. 8. Clause 12(1) provides the consent authority must not consent to a development application made pursuant to such part unless the consent authority is satisfied by written evidence that residents of the proposed development would have reasonable access to (e) home delivered meals or (f) personal care and home nursing and (g) assistance with housework. The remaining sub paragraphs of c12(1) are irrelevant for the present determination. 9. Secondly, the council claims that the learned Commissioner did not pay regard to the requirements of cl 25(f) of SEPP 5. Clause 25 provides that consent must not be granted for development to which this part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to sub paragraph (f), namely accessibility. The proposed development should, where appropriate, firstly have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities and secondly, provide attractive yet safe environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors. The critical matter for determination is whether the Commissioner considered each of these clauses. 10. In dealing with applications for development pursuant to SEPP 5 the objectives of the policy are to be considered. Such policy provides a special concession to permit development of the type proposed in an area where such development would not otherwise be allowed. A consent authority must pay regard to the requirements and the policy objectives when considering an application for development pursuant to SEPP 5. 11. Stoney Creek Road is a heavily trafficked arterial roadway. There is no parking permitted outside number 64, nor 68 Stoney Creek Road between the hours of 6am and 10am on any day. Pursuant to condition 70 imposed by the Commissioner, there would be no provision for parking on site. There is apparently parking available in a nearby side street, namely Mountain View Road and parking would be permissible after 10am on any day outside number 64 and number 68 Stoney Creek Road after the parking restrictions have expired. The question is whether such provision is adequate, and whether the Commissioner has taken account of the SEPP 5 requirement when imposing condition number 70. 12. Clause 12(1)(e) requires the consent authority to consider access to in sub paragraph (e) home delivered meals, or as set out in (f) personal care and home nursing or (g) assistance with housework. All of such services would probably require the use a vehicle. The consent authority is to take into consideration the other requirements that may be needed for a resident in the particular development. 13. At first glance it might appear that condition 70 is unrelated to clause 12(1) of SEPP 5 however the Court is satisfied that there is a connection. Clause 12 makes it mandatory for the consent authority to be satisfied that the required access is available. It could, for example be detrimental if a supplier of home delivered meals or of personal care is required to park their vehicle in a side street. 14. Clause 25 of SEPP 5 does not impose requirements in the sense of mandatory matters for consideration as set out in cl 12. Nevertheless the contents of Pt 3 relating to design requirements clearly imposes an obligation upon the consent authority to consider the principles. 15. The objectives are set out to establish a process that encourages good design in residential development, in cl 20. Clause 21 applies to development which is allowed to be carried out with development consent by the policy. Clause 23 requires certain design aspects to be taken into account when a consent authority considers an application for consent for the carrying out of development to which this part applies. It is in this context that the Court is required to consider whether the design of the proposal in each case satisfies the requirements of cl 25. 16. Turning to cl 25(f) it is provided that the proposed development should make provision for inter alia, convenient access and parking for residents and visitors. However condition 70 is to prevent parking for visitors on the site. In these circumstances a question arises to whether the Commissioner adequately considered the requirements of such clause. 17. In the Commissioner's judgment he referred to the provision of carparking and access. He referred to the width of the visitor carparking space. However, there is no further discussion by the Commissioner concerning visitor carparking space, subject to a paragraph to which I shall shortly refer to. There is much evidence given by a traffic expert, Mr Cody and that evidence concentrated on the traffic that was likely to be generated by the development. 18. There was evidence before the Commissioner concerning the difficulty of the location of the visitor car space in the re-examination of Mr Cody. In relation to that evidence the learned Commissioner at par [106] of his judgment referred to that issue as raised by the solicitor for the council. The Commissioner observed that there was no requirement under SEPP 5 for visitors' carparking. The difficulty concerning the reversing of vehicles from the site occupied the Court's attention in par [107]. The Commissioner at par [107] and par [108] referred to the suggestion that the visitor parking should be converted to a turning area. However, that appears to be the extent of the Commissioner's deliberation. 19. Absent from the judgment is an appreciation of the requirement that visitor carparking was to be considered as a principle for development and that the Court as a consent authority should take such matters into consideration. Also absent was consideration of whether appropriate provision of access for such things as home delivered meals, personal care, home nursing and assistance with housework had been made. 20. In short the issue of visitor parking, as a requirement under 12(1) and as a matter which has to be taken into consideration as a design principle, pursuant to cl 25, seems to have been overlooked. It is obvious that the aged persons and the disabled persons may need to have expert facilities provided to them as enumerated in clause 12(1)(e), (f) and (g), yet no provision at all exists on the site pursuant to condition 70 for such purposes. In these circumstances, even the provision of an ambulance to park at the site for example would be not permitted. 21. Having considered the provisions of the judgment and the conditions, there appears to be an inconsistency. Condition 1 required the development to be carried out in accordance with a statement of environmental effects and its addendums. Such statement refers to the fact that one visitor car space has been provided in each development. Special condition 41 imposed by the Commissioner refers to the fact that the developer must provide one visitor car space. Clause 44 refers to the fact that all vehicles were to exit and enter the site in a forward direction. 22. Mrs Kelly who appears for the applicant submits that condition 70 now supersedes condition 1 and condition 41. There is some merit in her submission but the question of compliance with SEPP 5 remains. 23. The council submits that because the special condition 70 was introduced in a re-examination of the final witness, it had no opportunity to consider the full impact of such a proposal, namely to eliminate visitor carparking from the site. The council claims that it would have called evidence in relation thereto. Condition 70 was not the subject of any debate. 24. Having considered all of the evidence and the judgment, the Court finds that the learned Commissioner failed to state in his judgment or otherwise failed to make it clear, that he in fact has taken into consideration the requirements of cl 12(1) of SEPP 5 and of the principles to be followed in cl 25(f). The matter is to be referred back to the Commissioner to enable these issues to be addressed and to enable him to state his findings. Costs 25. I have considered the statement of issues upon which this matter went to trial before Commissioner Watts. They are somewhat elliptical in the sense that they do not clearly define the issues. Mrs Kelly submits that had the question of visitor parking and access been made clear the matter may have been dealt with differently and this appeal avoided. In the circumstances, the Court will make no order as to costs. Orders 26. For these reasons the Court upholds the appeal. The formal orders of the Court are as follows:- 1. The appeal in each case is upheld. 2. The determination of the Commissioner made on 3 February 2000 is set aside. 3. The proceedings are remitted to the Commissioner for determination to take into consideration the requirements of clause 12(1)(e), (f) and (g) of State Environmental Planning Policy No 5 and of the principles referred to in clause 25(f). 4. The Court will make no orders to costs. 5. The Court orders that 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. 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.