Sydney Prestige Developments Pty Ltd v Hornsby Shire Council [2004] NSWLEC 598

Land and Environment Court of New South Wales

CITATION : Sydney Prestige Developments Pty Ltd v Hornsby Shire Council [2004] NSWLEC 598 APPLICANT Sydney Prestige Developments Pty Ltd PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10314 of 2004 CORAM: Tuor C. Development Application :- SEPP 5 Development KEY ISSUES: Access requirements Visual Impact Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 5 Hornsby Shire Local Environmental Plan 1994 Baulkham Hills Shire Local Environmental Plan 1991 DEM (Aust) Pty Limited v Pittwater Council [2004] NSWLEC 70 ; CASES CITED: Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 ; Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276 DATES OF HEARING: 09 - 10/09/2004 DATE OF JUDGMENT: 10/29/2004

APPLICANT Mr T To Solicitors Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson Solicitors Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

29 October 2004

10314 of 2004 Sydney Prestige Developments Pty Ltd v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application (2450/03) to demolish the existing buildings and construct self care villas, a community centre with aged care facilities and associated site works, under State Environmental Planning Policy No 5 – Housing for older people or people with a disability (SEPP 5), at lot 4 DP 507947, known as 603-605 Old Northern Road, Glenhaven and partly at lot 1 DP 135408, known as 607 Old Northern Road, Glenhaven (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted. The site and its context 3 The site is located on the eastern side of Old Northern Road. The proposed buildings are to be constructed at 603-605 Old Northern Road (lot 4 DP 507947). This allotment is rectangular in shape with a battle axe to Old Northern Road and an overall area of 2.93 ha. There is a depression running across the site from north to south and the site slopes from both the west and east towards this depression. 4 There is a house and a farm shed on the site as well as an arena for horse training. The remainder of the site is used as breeding paddocks and agistment for horses. 5 Pedestrian access via a raised walkway is to be provided on the southern boundary of 607 Old Northern Road (1 DP 135408). This will require a degree of excavation and earthworks to occur on part of this site. The allotment is currently developed with a house and a dam. There is a development approval for aged person housing under SEPP 5 for this site and the adjoining site to the south, 599-601 Old Northern Road. 6 Adjoining the property to the west, across Old Northern Road within Baulkham Hills Shire, is low density residential development. The proposal and its history 7 The application was lodged on 9 December 2003 and was notified to adjoining and nearby residents. Council received one submission from Round Corner Village Residents' Association. Council refused the application on 5 May 2004. 8 The application was amended to address concerns raised by the Court Appointed Experts. The amended application is the subject of this appeal. This proposes 37, three bedroom, single storey villa houses with a community centre. Car access to the development is off Old Northern Road and will be shared with 607 Old Northern Road. Planning Framework 9 The site is zoned part Rural BA (Small Holdings – Agricultural Landscapes) and part Special Uses B (Transport Corridor) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The proposed development is defined as "housing for aged or differently abled persons", "medical centre" and "demolition". Demolition is permissible in the Rural BA zone with consent, the other uses are prohibited but gain their permissibility through cl 4 (1) of SEPP 5 as the site adjoins land zoned primarily for urban purposes. The land to the west, across Old Northern Road is zoned Residential 2(d) (Protected) under Baulkham Hills Shire Local Environmental Plan 1991 (LEP 1991). 10 The Statement of Basic Facts outlines in more detail the planning framework that applies to the site, but no issues were raised with these instruments and policies. The issues 11 The Statement of Issues before the Court contained 12 issues. Most of these issues were resolved through the court appointed experts amended plans and conditions of approval. The remaining issues can be categorised into the following key issues: