Land and Environment Court of New South Wales CITATION : Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 Applicant Momentum Architects Pty Ltd PARTIES : Respondent Hornsby Shire Council FILE NUMBER(S) : (1)0352 of 2002 CORAM: Roseth SC - Moore C Development Application :- Housing for older people and people with a disability· Medium density housing in the rural landscape· KEY ISSUES: Internal amenity reasonable access to services use of agricultural land Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy 5 Hornsby Shire Local Environmental Plan 1994 Rural Lands Development Control Plan CASES CITED: DATES OF HEARING: 4, 5, 6, 7 and 8 November 2002 DATE OF JUDGMENT: 12/10/2002 Applicant Mr C McEwen, barrister instructed by Hannaford Lawyers LEGAL REPRESENTATIVES: Mr P Tomasetti, barrister instructed by Mr I Woodward JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0352 of 2002 Roseth SC Moore C 10 December 2002 Momentum Architects Pty Ltd Applicant v Hornsby Shire Council Respondent Judgment The appeal 1. This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to erect a housing development for older people or people with a disability, comprising 132 dwellings and parking for 272 cars, on lot 1 DP 135408, known as 607 Old Northern Road, Glenhaven. The site 2. The site is on the eastern side of Old Northern Road and has an area of 2.9 ha. It now contains a house and associated outbuildings. Part of a dam is located on the site, with the other part being on the northern neighbour, the Flower Power Nursery. Extensive filling has modified the original landform. While there are trees on the site, it is not heavily vegetated. 3. Across the road, on the west side of Old Northern Road is a low-density residential area, which is part of Baulkham Hills Shire. The east (Hornsby) side of the road is rural in zoning and character. The Flower Power site is the exception. While rural by definition, it is densely built and visually prominent. Despite its name, it has virtually no landscaping. 4. There are bus stops on both sides of Old Northern Road near the site. The buses connect to the Round Corner shopping centre, about 1km from the site as well as to Hornsby and Baulkham Hills. Relevant planning instruments 5. The Hornsby Shire Local Environmental Plan 1994 (LEP 94) zones the site Rural BA (Small Holdings, Agricultural Landscapes). The zone objectives require, among other things, the promotion of agricultural use and the maintenance of rural character. 6. The application is made under State Environmental Planning Policy 5 – Housing for Older People and People with a Disability (SEPP 5). This Policy allows medium-density housing in rural zones for older people and people with a disability, provided the site is adjacent to urban zoning. The Policy overrides other planning controls that are inconsistent with it. It is common ground that the proposal is permissible on the site. 7. Rural Lands Development Control Plan (the Rural DCP) has the primary purpose "to provide planning strategies and controls for development within the rural area, based on the findings of the Rural Lands Study". The objectives of the DCP include the enhancement of established rural character. 8. The Rural Lands Study sets down principles for development in rural zones. The proposal and its history 9. The applicant proposes to demolish the existing buildings on the site and to erect a development for older people or people with a disability containing 132 apartments and parking for 272 cars. The housing is laid out in three groups. The first group is close to the road and is in the form of two rows of buildings at right angles to each other, each row containing four dwellings on each of two levels. The second group is in the centre of the site and is in the form of three rows parallel to each other, containing 12, 10 and 8 dwellings respectively on each of two levels. The third group is towards the northeast end of the site and is in the form of three rows parallel to each other, containing 7, 9 and 13 dwellings respectively on each of two levels. Parking is at basement level. Apartments are single level. The access to the first floor apartments is through external lift towers, staircases and walkways, from which entrance bridges lead to front doors. Since the walkways and bridges go directly above and past the ground floor courtyards, there is an opaque glass screen along one side. 10. The applicant lodged the development application in February 2002. Following notification, the council received ten objections. In July 2002 the council considered a planning report from the Executive Manager of its Planning Division recommending refusal. The council accepted the recommendation and refused the application in September 2002. The applicant lodged the appeal in July 2002. The issues 11. The council submitted a Statement of issues containing 32 issues, of which it pressed 27. During the hearing the issues were refined as follows: · Is the impact on the rural environment acceptable? · Is the internal amenity acceptable? · Does the site analysis comply with the requirements of SEPP 5? · Is the access to public transport and facilities safe and convenient? · Will residents have reasonable access to home delivered services? · Is the loss of agricultural land a reason for refusal? · Is there likely significant effect on the Blue Gum High Forest on adjoining land? · Is there adequate information on water and sewer services? 12. During the five days of hearing, only the first six issues were covered. The parties requested the Court to determine these issues before setting aside further days to deal with the remaining issues. Impact on the rural environment 13. According to the council's Statement of Issues, the proposal will have a detrimental impact upon the streetscape; detract from the rural views from surrounding properties; be out of character with the surrounding rural landscape; and have detrimental impact on the natural and built environments. 14. LEP 94, the Rural DCP and the Rural Lands Study contain objectives and principles relating to the Shire's rural areas. These may be summed up as the maintenance of rural character. SEPP 5, under which this application is made, permits medium density housing on rural land, provided the occupants are old or disabled people. Thus, while the local controls permit one dwelling on this site, SEPP 5 permits in the order of 130 dwellings. We do not think therefore that it is valid to criticise this proposal on the basis that it is not rural in character. If it had only half as many dwellings as it does, it would still not appear rural in character. 15. The issue is made more complex by the fact that SEPP 5 appears to be drafted mainly for the assessment of housing in residential areas. Clause 25, which deals with the design of residential development, fails to mention the word rural. While it contains numerous guidelines and principles for fitting into residential areas, it says nothing about designing medium density housing in a rural environment. 16. Having said this, we believe that housing, even at medium densities, within a rural area should acknowledge its location and have a different design and appearance from housing in a residential area. While SEPP 5 provides no guidance, s79C(b) of the Environmental Planning and Assessment Act 1979 requires us to have regard to the proposal's impact on the natural and built environment. The visual impact on the rural environment is therefore a matter that we must consider in the assessment of this application. 17. Dr R Lamb, a visual analyst retained by the council gave evidence on visual impact. The applicant's expert was Mr C Blyth, a consultant planner. Dr Lamb and Mr Blyth differed in their assessment of the character of the surrounding area. Mr Blyth took his cue from the adjoining Flower Power site and the residential development across the road, while Dr Lamb considered that the majority of the surrounding area was rural in character. We agree with Mr Blyth that the Flower Power site is a hard and dominant development. However, this is the only development of its kind visible from the subject site. Its existence is not a reason to extend the un-rural character further. 18. Dr Lamb recognised that a development under SEPP 5 is unlikely to be rural in character. On page 11 of his statement he said: While I generally consider that development such as the proposed cannot realistically look like detached housing, nor should it have to, I am of the opinion that such development should be attentive to prevalent character elements with in the locality. In particular, the building size and styles have virtually no relevance to the rural landscape or the site conditions and have no local precedence within the rural setting. The siting of residences appears to take no special heed of site conditions and the treatment of the street frontage expunges sight lines through the site. There is minimal variety in building forms and little relationship between them and rural dwelling character. As such, the contrast between the existing character of the locality generally and that which would result from the construction of the proposed development would be extreme. In my opinion, the change in the character of the site would be so great as to adversely affect the existing and desired rural character of the surrounding properties to an unacceptable degree. 19. Dr Lamb agreed that the appearance of the proposal from Old Northern Road was acceptable. He considered the worst feature of the design to be the length of the rows of dwellings. The most northern row had an uninterrupted length of over 120m. He considered this to be unsuitable even in a residential zone, let alone in a rural environment. 20. Mr B Newbold, a consultant planner and urban designer retained by the council, supported Dr Lamb's evidence. He said that the proposal's scale was excessive for its context and not compatible with the surrounding landscape. 21. Mr Blyth, on page 19 of his statement, commented on the issue of rural character, amenity and streetscape: The built form is typically residential in its design appearance and proposes high quality generous floor plans with variety in size and style, in a two-storey built form. The form of the development enhances amenity through having well separated building enabling large landscaped separations between buildings and to the streetscape reducing scale and enhancing the landscaped setting of the development. The development will in my opinion undoubtedly have character and identity and will provide and attractive residential environment for future occupants. 22. We do not accept this evidence. The fact that the built form is residential in appearance, or that the floor plans are high quality and generous, says nothing about the impact on the rural environment. Moreover, it is not correct to say that the buildings in the proposal are well separated. Elevated walkways, bridges, lift towers and staircases fill in whatever separation exists. 23. It appears to us that Mr Blyth bases his defence of the proposal on the argument that SEPP 5 prevents a consent authority from refusing an application on the basis of Floor Space Ratio (FSR), if the FSR does not exceed 0.5:1. Therefore any development with a FSR of 0.5:1 is acceptable in character, no matter in what context it is located. We do not accept this line of reasoning. Whatever the FSR of a development under SEPP 5, it is still required to have an acceptable relationship to its surroundings. A row of dwellings 120m long would probably be out of place in most residential areas. It is grossly out of place in a rural setting. 24. We note that, while in most residential flat buildings the circulation space is internal, in this case the lifts, stairs and corridors are placed outside the buildings. As a result they are not included in the calculation of floor space. The exclusion from floor space calculations does not mean, however, that these built elements do not add to the apparent bulk of the building. The device may be effective in placing more dwellings on the site without exceeding the FSR of 0.5:1, but it is not effective in lessening the bulk and scale of the proposal. 25. For the above reasons, we accept Dr Lamb's evidence that the change in the character of the site would be so great as to adversely affect the rural character of the surrounding properties to an unacceptable degree. Internal amenity 26. According to the council's Statement of Issues, the design of the dwellings will not promote amenity, sense of identity and community for residents. The statement singles out the effect of the elevated walkways on the outlook from dwellings. 27. Clause 25(b) of SEPP 5 deals with visual and acoustic privacy. It states that a development should provide neighbours and residents with visual and acoustic privacy. Clause 25(c) deals with solar access and design for climate. It states that developments should, where possible, ensure adequate daylight to the main living areas of neighbours and residents and adequate sunlight to substantial areas of prive open space. In addition it provides that site planning, dwelling design and landscaping should reduce energy use. To measure the performance of an individual proposal, the subclause suggests that reference may be had to the Australian Model Code for Residential Development (AMCORD). 28. The council's expert on internal amenity was Mr Newbold. In effect, Mr Newbold criticised the proposal on three counts. First, the living areas and courtyards did not receive adequate sunlight. Second, the courtyards did not enjoy adequate privacy. Third, the long parallel rows of buildings with near-identical architectural expression created an unattractive residential environment. The reason for the lack of sunlight and privacy was the tight spacing of adjacent buildings and the proximity of overhead walkways to living rooms and courtyards. 29. The proposal was defended by Mr Blyth and by the proposal's designer, Mr J Bourke, an architect. They pointed out that all the dwellings have northern orientation. According to Mr Bourke, four of the dwellings fail to meet AMCORD standards for solar access, while another 16 may or may not meet it. He responded to the criticism of overlooking from the elevated walkways by placing an obscure glass screen along one side. 30. Mr Newbold did not accept Mr Bourke's estimate of the proposal's performance on solar access. He pointed out that the shadow diagrams did not include the impact of several built elements, such as the entrance bridges, balconies, lift structures, courtyard walls and the obscure glass balustrades and screens. According to Mr Newbold, 25-30% of the apartments do not meet AMCORD. 31. In relation to solar access, we find Mr Newbold's evidence more persuasive than Mr Bourke's. The reason is that Mr Bourke appears to have left out numerous elements that would produce shadows. While it is true that the vast majority of apartments face north, the benefit of north orientation is cancelled by the placing of the elevated walkways and entrance bridges to the north of about two-thirds of the apartments. We agree with Mr Newbold that in the context of this site, the non-compliance of 25% of apartments with AMCORD guidelines indicates a very poor performance on solar access. 32. We hasten to add that it is only in respect of this site that we consider the solar performance of the proposal poor. This is because the site is a rural allotment large enough to allow all living areas to be oriented to the north. (Indeed the designer has oriented most living areas to the north, but then cut off sunlight by placing structures in front.) There are no buildings around casting a shadow. It would not be difficult to achieve compliance with AMCORD guidelines (which are designed for an urban context and are not onerous) for all, or almost all, apartments. 33. We also accept Mr Newbold's evidence that the proposal performs poorly on the privacy and amenity of courtyards. It is true that the applicant intends to provide obscure glass screens on one side of the elevated walkways. This may prevent people looking down from the walkway to the courtyards, but it will present a bulky element to the courtyard. It will eliminate all the pleasure a resident might otherwise experience in a north-facing courtyard in a rural area. In fact, in most of the apartments there will be no sense of living in a rural area. The outlook will be confined to walkways, bridges, stairs, lift towers and the rear of the row in front. 34. In our opinion, the internal amenity of the proposal is unacceptable. The application does not meet cl 25(b) and (c) of SEPP 5. Site analysis 35. The council contends that the applicant has not carried out an adequate site analysis to meet the provisions of Clause 24 of SEPP 5. Clause 24 provides that consent must not be granted for development unless the consent authority has taken into account a site analysis prepared by the applicant in accordance with the requirements of the clause. A site analysis must contain information, where appropriate, about the site and its surrounds as described in Schedule 2. 36. Schedule 2 to SEPP 5 lists some 21 headings (many with sub-headings) under which information may be "appropriate" in the eyes of the consent authority. The appropriateness or otherwise of matters being included in the site analysis is a matter for the consent authority's discretion and, consequently, that discretion extends to the adequacy of the site analysis itself. The Court must therefore be satisfied that the site analysis contains all the appropriate information. 37. The council contends that the site analysis does not include information on important matters, such as contaminated soils and filled areas. We accept that this is a valid criticism. However, we have had the benefit of a wide range of written reports and oral evidence that goes to those matters mentioned in Schedule 2 and missing from the site analysis. Given that cl 24 places the emphasis on the need for the consent authority to take into account these matters before it makes a decision, in our opinion the intent of the clause is satisfied by the information on all relevant matters becoming available by the end of the hearing. We conclude that the totality of the documents and oral evidence in these proceedings has offset any defects in the site analysis itself. 38. Although a more comprehensive site analysis would have been desirable, the combination of the site analysis and the evidence before the Court meets the requirements of cl 24. The site analysis is not a reason for refusing the application. Access to public transport and facilities 39. Clause 25 of SEPP 5 states that consent must not be granted for development unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles. Subclause (f)(i) sets out the principle of accessibility, requiring that the proposed development should, where appropriate, have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities. 40. The parties have agreed that the issues of traffic management and road design require further consideration by the Roads and Traffic Authority of NSW as well as a formal application to Baulkham Hills City Council. However, the council contends that the furthest dwellings on the site are more than 400m from the bus stop and Old Northern Road is not safe for old and disabled people to cross. The applicant proposes to construct a pedestrian refuge at the point at which the residents would cross the road to reach the bus stop. 41. Mr M Relf, an access consultant, gave evidence on behalf of the applicant that the size and design of the proposed refuge was sufficient and appropriate for a safe crossing of Old Northern Road. In his opinion, elderly persons or persons with a disability (including those in wheelchairs) would be able to cross Old Northern Road in safety, using the pedestrian refuge if necessary. According to Mr Relf, the proposed width for the pedestrian refuge was more than sufficient to provide a safe intermediate point for a person in a wheelchair. 42. Since there was no evidence from the council to contradict it, we accept Mr Relf's evidence on this issue. There remains the question whether the furthest dwellings on the site are too far from the bus stop for convenience. Given that the bus stop is only a few metres from the entrance, we do not think that this can be a reason for refusal. If it were, it would be impossible to develop the whole of a large site, since there would always be dwellings that are far from the entrance. The issue would arise only if the distance between the bus stop and the entrance were close to the maximum distance of 400m specified in SEPP 5. 43. We are satisfied that the proposal meets the planning principle of safe and convenient access to public transport and facilities required by cl 25(f)(i) of SEPP 5. Access to home delivered services 44. Clause 12(2A) of SEPP 5 states: The consent authority must not consent to a development application made pursuant to this Part to carry out development 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. 45. Ms J Boardman, the council's community development officer, gave evidence in the council's case. Her main point was that those service providers that provide affordable services have no funds to take on new clients. Ms K Donnell, an access consultant, gave evidence in the applicant's case. Mr Relf, who dealt principally with internal and external accessibility, gave evidence, not merely from his perspective as a personal user but also from broader experience based on his planning and advocacy roles for the provision of such services. He said that community-based services tended to expand in the face of demonstrated additional need. 46. According to Mr Relf, services may be available to the proposed development from a community-based service provider from outside the Hornsby Shire. The service was already provided to the Glenhaven area and the local government boundary did not act as a barrier to including the subject site. Mr Relf added that Home Care Services of NSW has about 50,000 clients, of whom about 25% exit the service each year. The Service has a centralised assessment centre. When the Service is fully extended, a person needing help is placed on a waiting list. After a period of waiting, the person receives the service. The waiting time is usually a few weeks, though it may extend to a few months. 47. Ms Boardman did not contradict Mr Relf's evidence. In our opinion, the fact that Mr Relf uses the Service, as well as acts as an advocate for it, enhances the creditability of his evidence. Consequently we accept it. 48. The three consultants submitted a joint report. They agreed that o Hornsby Meals on Wheels is able to service the proposed development, o Home Care Services of NSW provides services in the Glenhaven area when funding is available, o Private home-delivered meals, personal care and home help services are available in the Glenhaven area. 49. Clause 12(2A) requires , first, that the Court must have written evidence before it. Second, the written evidence must be such as to satisfy the Court that the residents will have access to the services listed in the subclause. Third, the access to the services must be reasonable. 50. As regards the first matter, the council's advocate, Mr Tomasetti, submitted that the written evidence should be a written undertaking from the service providers that the service would be provided to the site. We do not accept this submission. In our opinion, the applicant's reports before the Court combined with the joint experts' report and the oral evidence (in particular, Mr Relf's) can be considered written evidence, since the oral evidence can always be transcribed into written evidence. We do not think that it is necessary for the applicant to provide written undertakings in order to satisfy the clause. Such undertakings would be difficult to obtain for a proposal that does not even have development consent. We are strengthened in this view by the observations of Pearlman J in David Crane & Associates Pty Limited v Kogarah Municipal Council: [1999] NSWLEC 27, where Her Honour said: There are no express words that state that the "written evidence" must amount to a binding contract for the provision of access. Indeed, that could hardly be so, having regard to the services set out in subcls (a) to (d), because a binding contract for the provision of those services would be impractical if not impossible. Nevertheless, the satisfaction must be established upon the evidence. There could be a whole range of evidence which would be sufficient to establish the relevant satisfaction. The clause does not specify what kind of evidence would be sufficient, except to say that it must be "written evidence". A binding contract for the provision of some of the specified services might be sufficient to establish the relevant satisfaction, but there may be other kinds of evidence which could achieve the same result. No doubt, the applicant's mere assurance that the specified services will be provided would not be sufficient; but beyond that there would be a range of facts and circumstances the proof of which could establish the relevant satisfaction. It is unnecessary and of no utility in the present proceedings to speculate what the evidence might consist of in any given case. That is not to say that there are no guidelines as to the evidence that may be sufficient for the purpose of establishing the relevant satisfaction. One requirement is that it be "written". There is no dispute between the parties in this case that the requirement of writing would be satisfied by documentary or oral evidence given in Court. Furthermore, the relevant satisfaction cannot be established by making assumptions as to what would occur in the future, nor can it be established simply by imposing a condition of consent requiring the applicant to provide the services (see Hornsby Shire Council v Malcolm at 436). 51. Given the agreement of the three experts, there can be no dispute that the evidence before the Court establishes that the residents will have access to home delivered meals, personal care and home nursing and assistance with housework. It is also established that, in the case of home delivered meals, the access will be reasonable, since Hornsby Meals on Wheels is the cheapest form of home delivered meals available. 52. The dispute between the parties is in relation to reasonable access to personal care, home nursing and assistance with housework. According to Ms Boardman, such a service is reasonably accessible if it does not cost more than $50 a week. Private nursing costs up to $50 an hour, so for people needing it every day, it is not reasonably accessible. There was no evidence on the cost of private assistance with housework (ie cleaners), however we assume that this would cost less than $50 an hour, but still too much to make it reasonably accessible to a person on the old age pension. 53. Despite the above, we are persuaded by Mr Relf's evidence that the residents will have reasonable access to personal care, home nursing and assistance with housework. This is because Mr Relf is confident that assistance from Home Care Services of NSW will eventually be available to persons in need, though it may be after an initial waiting period of some months. The cost of private services will therefore not have to be carried for long periods. It appears unlikely that persons purchasing the large luxurious apartments proposed in this development would not be able to carry the cost of private nursing and cleaners for short periods. 54. We conclude that the residents will have reasonable access to the services required by cl 12(2A). Loss of agricultural land 55. We do not accept that this is a genuine issue. The council contends that the loss of agricultural land resulting from this proposal justifies its refusal. While LEP 94, the rural DCP and the Rural Lands Study contain objectives to preserve agricultural land in Hornsby, SEPP 5 overrides planning instruments where they are inconsistent with the SEPP. If the agricultural objectives frustrate a development proposed under SEPP 5, they are inconsistent with the SEPP. 56. However, if we are wrong on the above, the expert evidence suggests that there is no loss of agricultural land. Mr N Truelove, an agronomist retained by the applicant, and Mr A Docking, an agronomist with NSW Agriculture, agreed that the site is not currently Class 3 agricultural land. There is no agricultural production on it now, apart from four horses grazing on it. At best the land could be used for a nursery or hydroponics. 57. Given the unfortunate impact on the rural scenery of the nursery next door, another nursery would hardly be a desirable use of this site. In our opinion, the proposal does not result in a loss of agricultural land. Conclusions 58. The parties requested us to determine the issues of impact on the rural environment, internal amenity, access to public transport and facilities, reasonable access to home delivered services and loss of agricultural land, before setting aside further hearing days to deal with the issues for which there was no time during the hearing. We have concluded that the proposal's impact on the rural environment and its internal amenity are unacceptable. Our finding on the other four issues is that they would not be reasons for refusal if the proposal were otherwise acceptable. 59. For the above reasons the appeal is dismissed. This eliminates the need for further hearing. Orders 1. The appeal is dismissed. 2. Development application to erect a housing development for older people or people with a disability, comprising 132 dwellings and parking for 272 cars, on lot 1 DP 135408, known as 607 Old Northern Road, Glenhaven is determined by refusal. 3. The Exhibits are returned. Dr J Roseth T Moore Senior Commissioner 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.