Land and Environment Court New South Wales Medium Neutral Citation: Walton v Blacktown City Council [2011] NSWLEC 1261 Hearing dates: 3 August 2011 Decision date: 17 August 2011 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld, in part. 2. Development Application No 10-2524 for a five bedroom group home at 8 Kirkman Road, Blacktown is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and B. Catchwords: DEVELOPMENT APPLICATION - appeal against conditions imposed on deferred commencement consent for a five bedroom group home - whether the conditions for a resident caretaker, a plan of management, emergency procedures, avoidance of light spill and additional waste facilities are appropriate. Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Lance Walton and Linda Walton (Applicants) Blacktown City Council (Respondent) Representation: Counsel Mr C Adamson, solicitor (Applicant) Mr D Loether, solicitor (Respondent) Solicitors Chris Adamson (Applicant) Bartier Perry (Respondent) File Number(s): 10017 of 2011 Judgment 1COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against conditions imposed by Blacktown City Council (the council) when granting a deferred commencement consent (Determination No 10-2524) on 9 March 2011 for a five bedroom group home at 8 Kirkman Road, Blacktown (the site). The deferred commencement conditions in Part 1 of the development consent have been satisfied and an operative consent granted by the council. The site is currently being used as a group home in accordance with Determination No 10-2524. 2The proceedings were conducted as an on-site hearing in accordance with s 34AA(2)(a). The site and the group home were inspected at the commencement of the hearing and following the inspection; the remainder of the hearing was conducted at the council offices. 3The applicant seeks to modify some deferred commencement conditions and operational conditions, notwithstanding that the proposed development is currently operational. The conditions in dispute 4The amended Class 1 appeal identified the following conditions, shown underlined below, in Determination No 10 -2524 as being in dispute: PART 1 DEFERRED COMMENCEMENT MATTERS 1.1 This development consent is not to operate until such time as the Applicant complies with the following items to Council's satisfaction. 1.1.1 Written evidence is to be submitted to Council that confirms that a resident caretaker has been appointed to manage the premises and to live onsite on a full time basis i.e. 7 days per week. 1.1.2 Details of the room within the Group Home for where the onsite caretaker is to live are to be submitted to Council. 1.1.3 Submission to Council of a Plan of Management which reflects the key matters set out below: Site Manager - caretaker/site manager live on the premises on a 24 hour basis and be available for contact. Details of the caretaker's responsibilities will be required to be submitted to Council as part of the Plan of Management. Resident Arrivals and Departures - appropriate signage to be provided within the building informing residents of the maximum number of guests permitted and limiting non-residents arrival and departure times. Access by non-residents - a resident caretaker can monitor and manage these areas to prevent any adverse impact on neighbours and passersby. Rights and Responsibilities - minimum information be prominently displayed advising of appropriate house rules, for example guest behaviour, activities and noise, visitor policy, operating hours of outdoor common areas, use of alcohol and/or drugs. Child Protection under NSW Legislation - the applicant to meet their obligations under the Children and Young Persons (Care and Protection) Act 1998 and where appropriate make referral to the relevant authority being either Human Services NSW (formerly Department of Community Services) and/or the NSW Police. Health and Safety Procedures - proposed safety and security measures to be employed within the house including prominent display boards within the building of emergency telephone numbers and other essential telephone numbers; and maintenance and fire safety in the building. Smoking, Alcohol and Drug Initiatives - appropriate signage is provided within the building informing residents of restrictions that apply in relation to smoking, alcohol and drug usage. 1.1.4 Building Code of Australia Compliance 1.1.5 Smoke alarms with evacuation lighting, connected to the consumer mains power, are to be provided within all bedrooms, the front hallway, the hallway between bedrooms 2 and 3, and within the dining room, in accordance with Clause 3.7.2.2, 3.7.2.4 and Clause 3.7.2.5 of The Building Code of Australia Housing Provisions. 1.1.6 A 9 kg carbon dioxide fire extinguisher is to be installed within the kitchen. 1.1.7 All works shall be carried out in accordance with the provisions of the Building Code of Australia. 1.2 Fire Safety Certificate 1.2.0.1 A final fire safety certificate complying with Clause 153 of the Environmental Planning and Assessment Regulation 2000 shall be issued prior to the use or change of use of the building. 1.2.1 Internal Signage Requirements (Implementation of Plan of Management) 1.2.1.1 Appropriate signage be provided within the building informing residents of the maximum number of guests permitted and advising of the permitted non residents arrival and departure times. 1.2.1.2 Appropriate signage be provided within the building informing residents of their rights and responsibilities including, but not limited to, house rules, for example guest behaviour, activities and noise, visitor policy, operating hours of outdoor common areas, smoking policy, policy on use of alcohol and/or drugs, the right to privacy and a complaints process. 1.2.1.3 Appropriate signage be provided within the building informing residents of health and safety procedures including, but not limited to, emergency telephone numbers and other essential telephone numbers; and maintenance and fire safety in the building. 1.2.2 Emergency Procedures 1.2.2.1 Instructions concerning procedures to be adopted in the event of an emergency shall be clearly displayed on the premises for both public and staff information at all times to the satisfaction of Council. 1.2.2.2 Written Evidence be provided to Council that essential services such as fire, ambulance and police have been contacted to ensure that keys for security entrance doors be made available in case of emergency. 1.2.3 Waste Management 1.2.3.1 The Applicant is to make suitable arrangements with Council's Waste Services Section for 1 additional domestic waste service (i.e. 1 garbage bin and 1 recycling bin). This will then ensure the premises is serviced by 2 garbage and 2 recycling bins. All matters listed above in Part 1 must be completed within the following nominated period from the date of this consent or this consent shall lapse. Nominated Period: 28 days PART 2 2 ADVISORY NOTES 2.1 Services 2.1.1 The applicant is advised to consult with: (a) Sydney Water Corporation Ltd (b) Integral Energy (c) Natural Gas Company (d) The relevant local telecommunications carrier regarding any requirement for the provision of services to the development in the location of existing services that may be affected by proposed works, either on the land or of the adjacent public road(s) 2.2 The Applicant is advised the obligations under the Children and Young Persons (Care and Protection) Act 1998 and where appropriate make referral to the relevant authority being either Human Services NSW (formerly Department of Community Services) and/or the Police NSW. 2.2.1 Pursuant to the provisions of the Youth and Community Services Act 1973 and The regulations, any care facility offering services for two or more disabled person is to be registered with the Department of Ageing, Disability and Home Care 2.3 The internal driveway and parking areas are to be designed in accordance with Australian Standard 2890.1 2.4 The required on-site car parking spaces are to have minimum internal clear dimensions in accordance with Australian Standard 2890.1 as follows: Covered Double Garage: 5.5m x 5.5m Uncovered Car Space: 2.5m x 5.4m 3 GENERAL 3.1.1 This consent relates to the following drawings/details submitted to Council with the Development Application, subject to compliance with any other conditions of this consent: Drawing No. dated Council's File Enclosure No. Site and Floor Plan undated 1A 4 OPERATIONAL (PLANNING) 4.1 Access/Parking 4.1.1 All required off-street car parking spaces and internal roads shall be maintained to a standard suitable for the intended purpose. 4.2 General 4.2.1 Spillage of light, if any, shall be controlled so as not to cause nuisance to the amenity of adjoining land. 4.2.2 If artificial lighting is proposed full details are to be submitted indicating the manner in which adjoining properties are to be protected. 4.2.3 Should an intruder alarm be installed on the land it shall be fitted with a timing device in accordance with the requirements of the Protection of the Environment Operations Act 1997 4.2.4 Emission of sound from the land shall be controlled at all times so as to not reasonably impact on nearby owners/occupants 4.2.5 The use of the land is not to interfere with the amenity of the residential area. 4.2.6 No objects or waste are to be stored at any time outside the building on either the internal vehicular driveway, car parking area (i.e. the double garage), landscaping or footpath, other than in approved garbage receptacles. 4.3 Landscaping 4.3.1 All landscaped areas shall be maintained at all times in a suitable manner 4.4 Use of premises 4.4.1 The use of the approved development shall, at all times, be conducted in a manner consistent with the terms and conditions of this consent. 4.5 Other Matters 4.5.1 A total of three car parking spaces are to be provided within the site for the caretaker and residents of the Group Home. These parking spaces are to be kept clear of obstructions and maintained in a satisfactory end usable manner. 4.5.2 An on-site caretaker used to be responsible for managing the Group Home residents and maintaining the premises to Council satisfaction. 4.5.3 The Group Home is to operate in accordance with the Plan of Management that has been endorsed by the Council for the Group Home at H/N 8 Kirkman Rd Blacktown. 4.5.4 The Group Home is to have a register that is capable of being inspected by Council officers or any other appropriately authorised person. 4.5.5 No approval is given by this consent for any use of t he existing double garage/storage building for residential occupation. 4.5.6 The Applicant is to comply at all times with the revised Plan of Management as approved by Council. 4.5.7 The Group Home is not to cater for disabled persons on the basis that the Group Home is not proposed to be modified to cater for disabled persons in accordance with Part D3 of the Building Code of Australia and Australian Standard 1428. The evidence 5The council provided expert evidence from Mr Glenn Apps on the town planning contentions and Mr Adam Matlawski on the contentions relating to fire safety, building classification and general Building Code of Australia contentions. The applicant did not provide any expert evidence however Mr Adamson cross-examined Mr Apps and Mr Matlawski on their evidence. The conciliation conference 6The appeal was conducted as a conciliation conference on 3 August 2011 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As part of the conciliation conference process, the opportunity for an agreement or a reduction in the number of conditions in contention was explored with the parties. The council's further consideration of their conditions prior to the hearing (see Exhibit 6) and discussions at the conciliation conference resulted in the following conditions no longer being in issue: * Condition 1.1.6 - this condition requires the provision of a 9 kg fire extinguisher but was amended to require the provision of 2 x 3 kg fire extinguishers, * Conditions 2.1.1, 2.2, 2.2.1, 2.3 and 4.4 - these conditions are advisory only and have been deleted by the council, including some conditions not raised by the applicant, * Conditions 4.2.3 and 4.2.4 - these conditions address noise and have been deleted by the council, and * Condition 4.5.1 - this condition requires the provision of 3 off street car parking spaces but was deleted and reference to car parking was limited to be parking shown on the application plans and referred to in condition 2.2.1. The reference to car parking space dimensions in condition 2.4 should be retained (new condition 2.1). 7As no overall agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b). In accordance with s 34AA(2)(b)(i) the hearing was held forthwith and in accordance with s 34AA(2)(b)(ii), on the basis of what occurred at the conciliation conference. The conditions in dispute 8The remaining conditions in dispute can be grouped into the following main areas: * whether the requirement for a resident caretaker is appropriate? (conditions 1.1.1, 1.1.2 and 4.5.2), * whether the requirement for a Plan of Management is appropriate? (conditions 1.1.3, 1.2.1.1, 1.2.1.2, 1.2.1.3, 4.5.3 and 4.5.6), * whether the requirements for emergency procedures are appropriate? (conditions 1.2.2.1 and 1.2.2.2), * whether the light spill and other amenity requirements are appropriate? (conditions 4.2.1, 4.2.2, 4.2.5, 4.2.6, 4.4.1), * whether an additional domestic waste service should be provided? (condition 1.2.3.1), and * whether disabled persons should be excluded because the group home has not been appropriately modified? (condition 4.5.7). The resident caretaker - submissions and evidence 9Mr Adamson submits that State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) specifically encourages group homes and that the imposition of unnecessary conditions is inconsistent with the aim of the SEPP. He submits that the majority of the conditions imposed by the council, including the provision of a resident caretaker, should be deleted for two reasons. Firstly, the provisions of s 46(1)(b) of the SEPP state: 46 Determination of development applications (1) A consent authority must not: . (b) impose a condition on any consent granted for a group home only for the reason that the development is for the purpose of a group home. 10Secondly, the provisions of s 79C(1)(b) that state: 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) (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, 11Mr Adamson submits that a reference to "likely impacts of the development" in s 79C(1)(b) cannot relate to speculative assumptions on the operation of the group home. He advocates that the operation of a group home is similar to the normal domestic operation of a dwelling house and that the conditions imposed by the council on the approval of the group home would not be imposed on the approval of a dwelling house. In the absence of any evidence to suggest that a group home would operate differently from a dwelling houses then the conditions should be deleted. Mr Adamson further submits that the SEPP does not mandate that a resident caretaker. If a caretaker was required, Mr Adamson submits that the role could be undertaken by the applicants who reside nearby. 12Mr Apps include the relevant definitions in his evidence. Clause 46 of the SEPP states a " group home means a permanent group home or a transitional group home ". The Standard Instrument (Local Environmental Plans) Order 2006 further defines a group home in the following terms: group home (permanent) or permanent group home means a dwelling: (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide permanent household accommodation for people with a disability or people who are socially disadvantaged, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. Note. Permanent group homes are a type of group home-see the definition of that term in this Dictionary. group home (transitional) or transitional group home means a dwelling: (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. Note. Transitional group homes are a type of group home-see the definition of that term in this Dictionary. 13He acknowledges the need for affordable housing and for short-term crisis accommodation that is met by group homes however he notes that while the definition does not explicitly mandate a caretaker, the definitions of both a permanent group home and a transitional group home make reference to the provision of "supervision or care". The definition does not provide any guidelines as to where or when such supervision or care need be provided, only that there may be cases where such supervision and care is provided. The SEPP is also silent on the question of when or where supervision or care is provided. 14In his opinion, the provision of supervision or care becomes a merit issue and should be based on factors such as the size of the group home, and the types of persons to be accommodated and whether they may have any special needs. Mr Apps acknowledges that a dwelling of five bedrooms would be able to accommodate a large family; potentially up to eight persons. While it would reasonably be expected that those persons would have visitors and service providers, Mr Apps does not accept that the group home can be reasonably compared to a residential dwelling. He states that the group home will have a maximum of 10 residents and those people will be unrelated and could be housed on a transitional basis. Further, the victims may be persons who are disadvantaged, displaced or suffering from other personal issues and may not have a sense of stewardship of the premises. Potential residents may have come from stressful situation, including domestic violence or eviction due to financial problems. Given the wide range of circumstances that may lead to people occupying the group home, Mr Apps maintains that a caretaker is critical to address any disputes between residents and before any disputes impact on the residents or nearby neighbours. 15Mr Apps rejects the submission of Mr Adamson that the role of caretaker could be undertaken by the applicants who reside a short distance from the site, firstly on the basis that it is more appropriate to have a person on-site who could deal with any issues quickly and secondly, any condition may be ineffective if the current applicants sold the premises. The resident caretaker - findings 16On the conditions relating to the provision of a resident caretaker, I agree with conclusions of Mr Apps for a number of reasons. First, and while the aims of the SEPP are to "facilitate" and provide "incentives" for a range of affordable rental accommodation, it does not follow that the aims are a reason themselves for an approval. The acceptability of a development must be based on a consideration of all relevant matters and that this consideration may lead to the refusal of an application or the imposition of conditions of consent to address likely impacts from that development even though the aims might be satisfied. 17Second, I do not accept that s 46(1)(b) of the SEPP places a barrier to the imposition of any conditions on an approval under the SEPP. Section 79C(1) of the Environmental Planning and Assessment Act 1979 places an obligation to take into consideration a range of matters, and in this case relevantly s 79C(1)(b) that states: (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, 18I did not understand that Mr Adamson, for the applicant, or Mr Loether, for the council, to submit that s 46(1)(b) provided a total barrier to the imposition of any conditions on an application for a group home. Their differences related to whether the conditions in dispute could be imposed under s 79C(1)(b). 19Third, I accept that the conditions in dispute can be imposed under s 79C(1)(b). The sub clause requires consideration of "the likely impacts of that development" and not, as submitted by Mr Adamson, definitive evidence of any impacts. The approach of considering "the likely impacts" of a development is clearly appropriate, particularly when many development applications relate to a development that has not commenced operation. I have little trouble in accepting the evidence of Mr Apps who is an experienced and well-qualified town planner and whose role in the council is to consider development applications under s 79C(1). I note that the applicant provided no expert evidence to refute the conclusions of Mr Apps. 20Fourth, I agree with Mr Apps that there is a likelihood of impacts from the development that would not be likely in an area made up of residential development because of the use of a single dwelling to house up to 10 unrelated persons on a potentially short term or temporary basis. Clearly, the operation of the group home will have characteristics that are different to a residential dwelling. In my understanding, the character of the area is predominantly, if not exclusively, residential dwellings and there is an obligation under s 79C(1)(b) to ensure that this residential character is protected and any impacts from other land uses are minimised. I am satisfied that any likely impacts can be minimised through the existence of a resident caretaker. 21Fifth, I do not accept that the requirement for a resident caretaker is unacceptably onerous given the potential to minimise any impacts from the proposed development. The resident caretaker is not an additional person but an existing occupier of the building but with additional responsibilities in the management and operation of the group home. The Plan of Management - submissions and evidence 22Mr Adamson submits that the conditions relating to a Plan of Management are unnecessary because the proposed development will operate in a manner similar to that of a residential dwelling. He also relies on his previous submissions in relation to the resident caretaker in that there has been no evidence provided to identify specific impacts from the proposed development. 23Mr Apps states that a Plan of Management is necessary as it establishes the roles and responsibilities of the operator, caretaker and residents and will: * provide clarity for the roles and responsibilities for the day-to-day operation of the facility, * ensure a level of harmony, safety and amenity for the operator, caretaker, residents and neighbours by establishing certain rules, and * establish a standard of operation that any future operator of this facility would be able to comply with. 24Mr Apps further states that a Plan of Management is a simple and valid mechanism for establishing clear operating guidelines that will benefit the operator, caretaker, residents of the facility and neighbours and a widely used means of achieving these outcomes. The Plan of Management - findings 25On the conditions relating to the provision of a Plan of Management, I also agree with Mr Apps. A Plan of Management is simply a collection of requirements that specify how the group home will be managed to ensure that it operates in a way that minimises impact on the group home itself, and the neighbourhood and the safety of the occupants. 26I have previously addressed some of the submissions made by Mr Adamson in previous paragraphs on the power to impose conditions and have little trouble in concluding that the requirement for a Plan of Management falls squarely within s 79C(1)(b) largely because of the different characteristics of the group home compared to the surrounding residential development and the need to minimise any amenity impacts. Emergency procedures 27I am satisfied that the conditions relating to emergency procedures are necessary given the potential unfamiliarity of the occupants with the dwelling in times of an emergency. Light spill 28I am satisfied that the conditions relating to light spill are appropriate given the different operating characteristics of the group home. Additional domestic waste service 29The objection to condition 1.2.3.1 is based on the submission that the group home does not generate sufficient waste to warrant the additional service. Mr Apps states that as the group home has the potential for up to 10 persons, the potential clearly exists for additional services when compared to a residential dwelling. 30I accept Mr Apps evidence on this condition however if it was established, through monitoring of the waste services over a reasonable period, that the additional waste service was not required, then an application could be made to modify the development consent. Disabled access 31Condition 4.5.7 prohibits disabled persons from using the premises, as the group home has not been modified to cater for disabled persons in accordance with Part D3 of the Building Code of Australia and Australian Standard 1428. 32This condition was not the subject of any evidence however as a general principle I accept the condition should be imposed. In the absence of at least one room satisfying Part D3 of the Building Code of Australia and Australian Standard 1428 then it is reasonable to deny access to the group home for disabled persons because of the potential safety risks of inappropriate accommodation. Orders 33Given that the conditions contained in Determination No 10-2524 have been changed, if only through the re assessment by the council, the orders of the Court are: 1. The appeal is upheld, in part. 2. Development Application No 10-2524 for a five bedroom group home at 8 Kirkman Road, Blacktown is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and B. G T Brown Commissioner of the Court ANNEXURE A 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. Decision last updated: 06 September 2011