Land and Environment Court of New South Wales CITATION : Walton and Anor v Blacktown City Council [2007] NSWLEC 214 APPLICANT L Walton PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10552 of 2006 CORAM: Hussey C KEY ISSUES: Section 96 Application :- s 96 Modification to transitional group home consent, maximum population numbers, number of car parking spaces. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 9 Blacktown Local Environmental Plan 1988 CASES CITED: Walton v Blacktown City Council [2006] NSWLEC 451 DATES OF HEARING: 18/04/2007 DATE OF JUDGMENT: 19 April 2007 APPLICANT Mr L. Walton, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr P. Kelso, solicitor of Norman Waterhouse Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 19 April 2007 10552 of 2006 L Walton v Blacktown City Council JUDGMENT Background. 1 This appeal concerns a s 96 Modification application to conditions of consent imposed on a development consent for a transitional group home at 11 Fullam Road, Blacktown. The development consent was granted by the Court on 29 November 2006. The conditions sought to be modified relate to: o Condition 2; which imposed a maximum number of 8 persons, with the proviso of an increase to 10 in emergency circumstances, allowed to be accommodated in the home, 2 The applicant initially sought to have the maximum number of persons increased to 10, but during the hearing requested this be increased to 12 persons. o Condition 3; which required the provision of 2 car parking spaces on the site. 3 The applicant sought to modify this by reducing the requirement to 1 car parking space. 4 At the commencement of these proceedings, the applicant confirmed that the modifications sought related of to these conditions. Mr Walton, also confirmed that there was no change in circumstances from the original merit hearing and that the main purpose of the subject application was to review the evidence and outcome of the original appeal. 5 Mr Kelso objected to the matter being effectively a rehearing of the merits, with no other substantial evidence being presented. 6 However, Mr Walton was granted leave to make further relevant submissions in support of his case. 7 This resulted in his tendering a written submission (Exhibit D) covering a broad range of issues, a floor plan of the house ( Exhibit E) and a number of photos of the internal rooms. Council presented no new evidence, although Councils original bundle of documents (Exhibit 2) containing planning instruments was again referred to. Planning Framework. 8 As this appeal related to a s96 modification, reference was made to the following planning instruments. o Environmental Planning Assessment & Act 1979 (EPA&A). Of relevance, s96(2) states: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. 9 The section 79C(1) provisions are: 79C Evaluation (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. o State Environmental Planning Policy No 9 –SEPP 9) -Group Homes. The relevant provisions include: Aims, objectives, etc 3. The aim of this Policy is to facilitate the establishment of - (a) permanent group homes in which disabled persons or socially disadvantaged persons may lead as normal a life as possible by living permanently in an ordinary residential household environment, instead of in an institutional environment; and (b) transitional group homes which provide temporary accommodation for disabled persons or socially disadvantaged persons in an ordinary residential household environment instead of in an institutional environment for purposes such as alcohol or drug rehabilitation, "half-way" rehabilitation for persons formerly living in institutions and refuges for men, women or young people. "transitional group home" means a dwelling - (a) used to provide temporary accommodation, for the purposes of relief or rehabilitation, for disabled persons or socially disadvantaged persons, whether those persons are related or not; and (b) occupied by the persons referred to in paragraph (a) as a single household, either with or without paid or unpaid supervision or care either with or without payment for board and lodging being required, but does not include a building to which State Environmental Planning Policy (Seniors Living) 2004 applies. Where development consent for group homes is required 7.(1) Notwithstanding clause 6, development for the purposes of - (a) a permanent group home that - (i) contains more than 5 bedrooms; or (ii) is occupied at the same time by more residents (including resident staff, if any) than is equal to the number calculated by multiplying the number of bedrooms in that home by 2; or (b) a transitional group home, shall not be carried out without the consent of the council. (2) The council shall not refuse its consent to the carrying out of development for any of the purposes referred to in subclause (1) unless it has made an assessment of the community need for the group home the subject of the application for consent o Department of Planning Circular No B6 -Group Homes. o Blacktown Local Environmental Plan 1988. o Blacktown Development Control Plan (Extracts). Discussion of evidence. 10 In the presentation of his case, Mr Walton covered a broad range of issues encompassing his dissatisfaction with council procedures, controls and staff responses with his objections being mainly of an ideological nature. He also referred to the community expectations and benefits from the provisions of appropriate transitional group homes and his interpretation of the SEPP 9 provisions. 11 Whilst he presented a considerable amount of detail on these issues, it appears to me that much of it is not relevant to this particular s96 modification application. Notwithstanding this, I accept that there are likely significant community benefits from the provision of appropriate transitional group homes and in this regard, Mr Walton ultimately acknowledged that it was appropriate to place some limit on the maximum number of people to be accommodated. 12 When asked what evaluation criteria he considered should apply to this determination, he relied on the provisions of SEPP 9 and thought that the safety provisions of the BCA could also be applicable. 13 From the evidence presented, I am satisfied that the merits of this s96 modification application can be assessed in this case, because it relates to substantially the same development. This assessment then involves consideration of the following relevant s79C considerations as listed in the EPA & Act, with the principle matters concerning the suitability of the site for the development and the public interest. 14 I accept from the previous appeal that this residential site is suitable for the proposal, although when consideration of the merits is undertaken, it is appropriate to determine whether conditions of consent should be imposed on the development of the site to ensure reasonable environmental impacts in the neighbourhood. For the subject application, my approach to determining appropriate conditions would include consideration of the "environmental and amenity capacity" of the house. 15 In this regard, it is apparent to me that the size of the house in terms of the number and dimensions of the bedrooms, together with other ancillary kitchen/dining/lounge/toilet and bath rooms would indicate the environmental and internal/external amenity of the house. Taking into account the objective 3 (b) of SEPP 9, it seems to me that the temporary accommodation for the designated persons should be achieve reasonable levels of convenience, safety and amenity. 16 On this basis, Mr Walton provided the following details of the subject house: o Overall floor area; approximately 132 sq m, o Bedroom 1; 3.4m x 3.7m, containing 1 queen bed + 1 single bed, o Bedroom 2; 2.4m x 2.4m, containing 1 single bed, o Bedroom 3; 3.7m x 2m, containing 1 single bed, o Bedroom 4; containing 1queen bed + 1 single bed. o Toilet , o Combined Shower/Bath room, o Lounge room; 3.3m x 5.5m, containing 11 chairs, o Kitchen. 17 From this, it appears that a convenient maximum occupation would be 8 persons, assuming 2 persons/queen beds. However, Mr Walton says that most patrons are in emergency situations and family arrangements allow additional persons, particularly children to be accommodated within these larger bedrooms. Accordingly he considers, the consent should be increased to permit a maximum of 12 persons, although no details were provided to show this accommodation arrangement. 18 Insofar as, Mr Walton was unable to provide a detail dimensions of the various bed sizes to assess the aforementioned criteria of convenience, safety and amenity, it seems to me that there is not sufficient room to reasonably accommodate 12 people, if they are to have reasonable circulation room, some storage area for possessions and reasonable access to the ancillary rooms such as toilet and bathroom. 19 Mr Walton also said that 1 room was occupied by a caretaker. I presume this, together with size of the single bedrooms would effectively limit accommodating extra persons in this room. Even though, he seeks approval for the 12 persons, Mr Walton admitted that it would be difficult to fit this number in. 20 From my consideration of this issue, I am satisfied that it is appropriate to impose a condition limiting the number of people that can be accommodated within this house, which based on the floor plan presented to the Court, I do not consider is a large house as claimed by Mr Walton. 21 Therefore, I am satisfied from the aforementioned evidence that a maximum number of 8 persons is reasonable, together with the allowance for 2 additional persons in extraordinary circumstances, represents the reasonable maximum environmental and amenity capacity of this house. In the absence of any expert evidence regarding the "crowding effect" of allowing more of the designated people (some of whom may need special attention) into these bedrooms, I do not consider Mr Walton has made a compelling case to increase the number of persons to 12. 22 The associated issue concerns the provision of car parking spaces. Mr Waltons basic position is that SEPP 9 requires that a transitional group home maintain a normal residential neighbourhood presentation. Accordingly, as other residential dwellings in the neighbourhood are only required to provide 1 car parking space, this should apply to the subject development. 23 In considering this issue, I note Mr Waltons concession that the property currently has a carport and can likely accommodate a total of 3/4 cars on site. Mr Walton also said that the caretaker has a vehicle (albeit apparently not working), which is parked on the site. 24 Under these circumstances, it seems reasonable to me that a parking space is provided for the caretaker, together with 1 additional space for the house patrons and/or their service providers and visitors, so that reasonable levels of security, safety and convenience are provided. In this regard, no hardship is imposed on the applicant because the 2 spaces exist and in my opinion should be maintained. This requirement will maintain the existing presentation of the house. 25 Furthermore, I do not accept Mr Walton submissions that retention of the existing condition 3 should have any precedental affect. No substantive evidence was presented in this regard and the council can adopt appropriate controls, if necessary to address this concern. Conclusions 26 Having considered the evidence and submissions, I am satisfied that this s 96 application should be refused. In doing so, Mr Walton was afforded considerable latitude and time to support this application on the basis of public interest considerations, against the early objections of Mr Kelso. 27 Mr Kelso referred the Court to a matter of Walton v Blacktown City Council [2006] NSWLEC 451 (12 July 2006), wherein the Chief Judge in that case stated: 61 I have determined that the s 96 application should be refused, both in the exercise of my discretion and on the merits. 62 The chronology I have given above well illustrates that the matters that are now challenged by Mr and Mrs Walton in their s 96 application have been litigated before. Mr and Mrs Walton have had ample opportunity to put their arguments on these issues and have availed themselves of that opportunity. Each of their arguments that has been put in relation to the conditions sought to be modified on this s 96 application has been dealt with before by the Court in the s 97 appeal. 63 Nothing has changed after Commissioner Moore's decision of 19 April 2006. The arguments put by Mr Walton, summarised in his statements that became exhibits A and B, do not refer to any circumstance that has occurred subsequent to Commissioner Moore's decision. 64 An application under s 96 of the EPA Act is not the appropriate vehicle to seek a re-hearing on the merits of a decision of the Court on a s 97 appeal, unless there has been some material change in circumstance or something has been revealed which was not known at the time of the hearing of the s 97 appeal: see generally Progress and Securities v North Sydney Municipal Council (1988) 66 LGRA 236 at 243, 245 and 246. 65 I would also reject the s 96 application on the merits. 28 Following this line of authority, I accept that Mr Kelso's submission is valid and on this basis, Mr Waltons initial acknowledgement that there are no change in circumstances from the original merits hearing, would allow the exercise of discretion to refuse the s 96 application. 29 Notwithstanding this, I also have considered the relative merits of both the conditions involving the maximum number of persons and provision of car spaces for this transitional group home and do not consider any compelling case has been made to support the applicant's claims based on the aforementioned assessment. Court Orders 1. The appeal is dismissed. 2. The s 96 modification application to the conditions of consent for the transitional group home at 11 Fullam Road, Blacktown is refused. 3. The exhibits be retained except No. 2. ___________________ R Hussey Commissioner of the Court ljr 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.