Land and Environment Court New South Wales Medium Neutral Citation: Malton Road Development Pty Ltd v Hornsby Shire Council [2018] NSWLEC 1265 Hearing dates: 4 and 28 May 2018 Date of orders: 05 June 2018 Decision date: 05 June 2018 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are as follows: (1) Leave is granted to rely on amended joint expert report for access of 25 May 2018. (2) Leave is granted to rely on amended Clause 4.6 variation report of 30 May 2018. (3) The appeal is upheld. (4) Development Application DA/1257/2016 associated with Lot 1 DP 950410 and Lot 1 DP 943264, also known as 6 and 8 Malton Road, Beecroft is approved, subject to the conditions in Annexure A. (5) The Exhibits, except Exhibits 1, 4, F and H are returned. Catchwords: APPEAL: development application: infill self-care housing; clause 4.6 variation; access pathway; SEPP seniors housing clause 26. Legislation Cited: Hornsby Local Environmental Plan 2013 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Cases Cited: Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Wehbe v Pittwater Council [2007] NSWLEC827 Category: Principal judgment Parties: Malton Road Development Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) P Hudson, Marsden Law Group (Respondent) File Number(s): 2017/299343 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA)/1257/2016 by Hornsby Shire Council (the Council) to convert two existing houses and construct a residential flat building as infill self-care housing on Lot 1 DP 950410 and Lot 1 DP 943264, also known as 6 and 8 Malton Road, Beecroft (hereafter the site). 2. The DA was received by Council on 12 October 2016 and following notification, received 63 submissions from residents. The DA was subsequently amended and provided to Council on 13 July 2017, which received 21 submissions following further notification. 3. The subject of appeal relates to the amended DA. The proposal is for the conversion of the two existing houses into four units, and the construction of a two storey residential flat building containing six units with basement car parking at the rear of the site. 4. In response to the appeal lodged with the Land and Environment Court (the Court) on 4 October 2017, a s34 conciliation conference was held onsite on 14 March 2013, and terminated the same day. The parties sort a consent orders hearing on the basis that all contentions were resolved, however due to the high level of submissions, a s34 agreement could not be made. 5. On the first day of the consent orders hearing, the Court heard from seven resident objectors on issues related to traffic, access pathway, dormer windows, trees, privacy and flooding. 6. The parties agree that all issues raised by the objectors and as detailed in the Statement of Facts and Contentions (SoF in Exhibit 1), except the access pathway to public transport in Contention 2, are resolved based on the additional information provided by the Applicant and/or by condition on consent. 7. Immediately prior to the hearing, the Council requested further information from the Applicant on survey levels along the preferred access pathway, agreed by both parties as Route A. The hearing was adjourned to allow the Applicant to undertake the required survey of Route A, as shown in Exhibit B. 8. The survey results were the subject of joint expert conferencing, with the outcome provided in Exhibit A. The key result was the amendment of the overall average gradient for Route A to 1:18.9. 9. Following the provision of survey information on Route A, Council conceded during the adjourned period that it was unable to enter into consent orders and requested the appeal to be resolved through merit assessment of Contention 2 before the Court. 10. During the hearing, the Applicant sort and was granted leave to amend the request to vary the standard relevant to the access pathway based on the results of the survey for Route A. This was submitted by the Applicant subsequent to the hearing and is entered into evidence as Exhibit H. Council have not reviewed the amended standard variation request and therefore do not change its position with regards to the contention. 11. The parties were granted leave to provide draft conditions following the hearing, which are entered into evidence as Exhibit 5. The Site 1. The site is located within close proximity to Beecroft Railway Station and Beecroft commercial centre along Wongala Crescent, approximately 391 m from the site. 2. The site has a total area of 3,650 square metres (m2) with frontage to Malton Road of 54.87 m. The site has a slight fall towards the southeast, and is elevated in the catchment. 3. Located towards the front of No. 6 and No. 8 Malton Road are dwelling houses of Inter-War (C 1941) and Federation (C 1914) periods, respectively. The surrounding area is dominated by houses of similar character and style. The relevant planning controls 1. The requirements for ensuring access to services and facilities by seniors and those with a disability are established in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP) and specifically Clause 26, which applies to the contention under appeal, as follows: 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to: (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. (2) Access complies with this clause if: (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or (c) in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area)—there is a transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time. (4) For the purposes of subclause (2): (a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause: bank service provider means any bank, credit union or building society or any post office that provides banking services. 1. The site is zoned R2 Low Density Residential Zone, pursuant to the Hornsby Local Environmental Plan 2013 (HELP). The objectives of the R2 zone are as follows: 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Clause 4.6 of the HLEP provides an opportunity to consider an exemption to development standards by way of written request. Clause 4.6 relevantly explains: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note. When this Plan was made it did not include of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4. Evidence 1. The Applicant and Respondent relied on Ms Christine Cheng and Mr Mark Relf, respectively as access experts. The Respondent relied on Ms Susan Francis as its planning expert. 2. The Council contends that sections of the access pathway, Route A, do not comply with cl 26 of the SEPP, with regards to the grade as specified in cl 26(3). Therefore, further consideration for consent requires a request for variation of cl 26(3) standard, pursuant to cl 4.6 of the HLEP. 3. The Applicant states that: the average grade of Route A satisfies 1:14 as required by cl 26(3) of the SEPP; the non-compliances of grade in sections of Route (A) are minor; the accessibility to public transport that serves shopping centres with services/facilities are achievable; and the cl 4.6 written request satisfies the requirements for a variation to the standard if deemed required, based on improvements to a community used pathway as a public benefit. 4. The Applicant relies on having achieved the average grade of 1:14 for Route A as established in cl 26(3) of the SEPP, however if the Court is so minded to disagree, then the cl 4.6 request pursuant to the HELP seeks to vary cl 26(3)(i), (ii) and (iii) that will relevantly satisfy cl 26(1) and cl 26(2)(b). The Applicant does not rely on cl 26(2)(a) or cl 26(2)(c). Is there a breach of cl 26(3) of the SEPP (seniors) for proposed Route A? 1. Mr Relf explained that the Council adopts the standards provided in cl 26 of the SEPP to ensure suitable access to services and facilities for people with mobility impairment when assessing seniors' housing development, rather than apply other industry standards. 2. The access experts are in agreement on the following: * Route A is the preferred path, which is located wholly on Council owned land. * The overall average grade of Route A is 1:18.9. * The proposed rectification works along Route A resolves a poorly designed existing path infrastructure and 'minor digressions from the clause 26 requirements of 1.50 and 5.00 meters are of no consequence to people with mobility impairments whether they are ambulant or use a motorised wheelchair or scooter'. * To satisfy cl 26(2)(b), the development relies upon Route A to the bus stop on Wongala Crescent, as there is currently no disabled access to the train station. Bus routes travel to Castle Hill, Macquarie Centre and Sydney shopping precincts. * The proposed access pathway of Route A that does not comply with cl 26(3) because of too steep a grade in sections (including 1:8 for 2.35 m, 1:10 for 4.0 m and 1:8 for 1.5 m) which includes a 45 m length of previously (Council) upgraded paved path along Wongala Crescent and located adjacent to the railway car park. * The proposed rest stops along the route and a bench seat will reduce the risk of injury to persons that are frail. * The proposed route that is currently not easily accessible allows persons with mobility impairments access to services/facilities via (bus) transport. * The proposed route also provides access, although not relied upon, via a pedestrian crossing to Beecroft commercial centre, to services/facilities for medical, bank and cafes, as shown in Exhibit C. An estimated 50% of these shops are accessible by a wheelchair. 1. The experts agree that the access pathway does not comply with cl 26(3)(i) of the SEPP for 20 m section at a grade of less than 1:12, and cl 26(3)(iii) for 2.35 m section at a grade of 1:8. 2. In the opinion of Mr Relf, the sections of path that are considered non-compliant with cl 26(3) of the SEPP, are of minimal risk to persons with a mobility impairment due to the low grade of non-compliance, at less than 0.08m grade difference per 1 m travelled, which would be imperceptible to a wheelchair bound or frail person. 3. Ms Francis agreed that the provision of a bench seat along the section of pathway adjacent to the railway carpark would be feasible, if installed near the stairs at the railway entrance. 4. Ms Francis was of the opinion that the proposed upgrade to the access pathway along Route A supports the location of the site for seniors housing, together with its proximity to public transport and local shopping facilities. The improved pathway will be accessible by the wider community and is therefore in the public interest. Findings 1. It is acknowledged that the Applicant is only seeking consideration for a variation of cl 26(3) of the SEPP to specifically achieve cl 26(1) and cl 26(2)(b). 2. It is agreed that cl 26(2)(c) is not relevant to this development. 3. The site is located within 400 m of local services/facilities, as required in cl 26(1) of the SEPP. However, as the evidence presented does not specifically address access to the Beecroft commercial centre, which would require a survey of the crossing, I will not further consider compliance with cl 26(2)(a). 4. The minimum grade and requirements for compliance as established in cl 26(3) of the SEPP are designed to reduce injury to people with mobility impairment. Cl 26(4) of the SEPP provides a definition for access to a suitable pathway as: (4) For the purposes of subclause (2): (a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. 1. I accept the survey evidence for Route A, provided in Exhibit B, which indicates that the overall average grade is 1:18.9, and therefore satisfies the requirements of the first part of cl 26(3), namely 'the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14'. 2. I concur with the experts and the evidence supports that there are sections of Route A, including 45 m of previously (Council) upgraded section adjacent to the railway carpark between chainage 203.24 and 243.24, that do not achieve a grade of 1:14. 3. I must therefore turn to the sectional grade requirements established under cl 26(3) of the SEPP. I find that the intent of cl 26(3) was to not only require an average gradient for an access pathway to be deemed 'suitable', it also requires the discrete lengths of the access pathway to be grade compliant. I rely on cl 26(4)(b) to inform me on what is 'suitable' in assessment of compliance with cl 26(3). 4. I find that the grade for specific lengths of Route A as specified in cl 26(3)(i), (ii) and (iii) require careful consideration, and that this 'sectional assessment' is consistent with applying 'at a time', as specified in cl 26(3). 5. I find with regards to cl 26(3) of the SEPP that the proposed Route A for the development does not comply for the following components of cl 26(3) of the SEPP: 1. a 20 m section is of grade between 1:11 and 1.10, 2. a 5 m section is of 1:10 grade, 3. a section of 2.35 m is of 1:8 grade. 1. A cl 4.6 variation request, pursuant to the HELP is therefore required for further consideration of proposed Route A. 2. The Court must be satisfied that a variation to cl 26(3) will achieve compliance of cl 26, including satisfying cl 26(1) and cl 26(2)(b) which are relied upon, that being 'residents of the proposed development will have access that complies with subclause (2)' and 'there is a public transport service available to the residents who will occupy the proposed development', respectively. 3. When assessing a variation of cl 26(3), there are a number of steps, often referred to as the 'Wehbe tests' which must be satisfied. These steps for assessment are helpfully explained by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC827 and based on the criteria established in cl 4.6 of the HELP, which are addressed below. Cl 26 standard SEPP objectives 1. There are no specific objectives for the standards provided in cl 26 of the SEPP. Written Request 1. The written request, Exhibit H, states that compliance with the standard is unreasonable and unnecessary because the site is well located within close proximity to a reliable public bus service and the Beecroft Local Centre, by which access for the whole community will be better served by the proposed improvements in the existing pathway along Route A. 2. The written request goes on to state that there will be no adverse environmental impacts, the pathway is well designed and the proposed pathway is in keeping with the character of the area. 3. The written request acknowledges that there are no objectives for cl 26 of the SEPP, and specifically the standard being assessed under cl 26(3). 4. In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston CJ establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (to address cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard and the zone are achieved notwithstanding non-compliance with the standard. 5. The written request goes on to address how the (R2) zone objectives will be achieved with proposed Route A that supports this development. Zone objective 1: To provide for the housing needs of the community within a low density residential environment 1. The proposal provides aged care within a low density residential community that is located within close proximity to services and facilities that are required for persons living in 'infill self-care housing' to maintain level of independence although recognise their possible limitations in mobility. 2. The written request considers that the non-compliance of the standard in cl 26(3) of the SEPP does not limit the achievement of this objective. Zone objective 2: To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The development, including Route A are designed sympathetic to the surrounding environment, by maintaining existing infrastructure where possible and either upgrading or augmenting where needed for those to be served by the development. 2. Route A will be available for use by the broader community, including 'other senior members' to better access local services, facilities and transport. The development proposal will contribute to growth in the area. 3. The written request considers that the non-compliance of the standard in cl 26(3) of the SEPP does not limit the achievement of this objective. Sufficient environmental planning grounds 1. The written request states that Route A demonstrates sufficient environmental planning grounds to permit the variation, based on the following factors: * The development is within close proximity (391 m), and linked via Route A to required transport that access services and facilities. * The non-compliant gradient along Route A is non-detectable to those with mobility impairments and the overall average gradient does not exceed 1:14. * The proposed upgrade of Route A will improve safety and suitability of the pathway to be used by the wider community, and provides an alternative access for the community to public transport and the village centre. The improved access to public transport supports the proposed future upgrade of Beecroft Station to become 'accessible'. * The proposed rest seating along the path is available for any member of the community to use as needed. * There are no environmental impacts from the non-compliance of the standard. Public interest 1. The written request establishes that as the objectives of the zone are achieved by the proposed development, including Route A, there are sufficient environmental planning grounds, therefore a variation to the standard is in the public interest. 2. The written request goes on to state that there is benefit to the broader community from the upgrade of a public path infrastructure linking to public transport and local shops. Findings 1. In considering the issue of consistency with the zone objectives, I adopt the approach expressed in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 by Pearlman CJ in [27): The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 1. I find that the written request has satisfactorily demonstrated that the proposed development is not inconsistent with the zone objectives. There are no objectives for cl 26 of the SEPP, and specifically cl 26(3) to be addressed. 2. I accept the evidence provided in the written request, which is supported by experts evidence that establishes: * the provision of improve access allows senior members of society to remain in their community in aged care facilities that will also support local economies; and * due to the 'minor digressions' in grade variation for sections that do not comply with cl 26(3), the effect of the non-compliance in the access pathway grade is of minimal risk to persons of mobility impairment; and * the proposed landings and bench seat provide further opportunity for less mobile persons to rest and limit the effect of grade non-compliance; and * the proposed upgrade to the existing pathway which links with the existing upgraded pathway allows safer access than is currently enjoyed by all members of the public. 1. The general outcome of the upgraded pathway along Route A, linking the development to public transport is a 'suitable access pathway' as defined in cl 26(4) of the SEPP. It will allow residents of the proposed development, as well as members of the broader community including those with mobility impairment, to access required services and facilities. Therefore, the proposed pathway upgrade and augmentation of Route A with features to reduce risk of injury, satisfy the requirements of cl (26)(2)(b). and achieve cl 26(1). 2. Therefore, the proposed Route A complies with cl 26(1) of the SEPP, to provide access to services and facilities for residents of the proposed development. 3. For the reasons above, the granting of an exception to the standard established in cl 26(3) of the SEPP is supported in the circumstances of this case. Orders 1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended joint expert report for access of 25 May 2018. 2. Leave is granted to rely on amended Clause 4.6 variation report of 30 May 2018. 3. The appeal is upheld. 4. Development Application DA/1257/2016 associated with Lot 1 DP 950410 and Lot 1 DP 943264, also known as 6 and 8 Malton Road, Beecroft is approved, subject to the conditions in Annexure A. 5. The Exhibits, except Exhibits 1, 4, F and H are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (134 KB, pdf) ********** Amendments 28 June 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties amend orders 3 and 4. 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: 28 June 2018