Ritchie v The Hills Shire Council [2018] NSWLEC 1376

Land and Environment Court New South Wales

Medium Neutral Citation: Ritchie v The Hills Shire Council [2018] NSWLEC 1376 Hearing dates: 23 July 2018 Date of orders: 24 July 2018 Decision date: 24 July 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: (1) Appeal dismissed. (2) Exhibits returned. Catchwords: APPEAL – Development consent - dual occupancy under the State Environmental Planning Policy (Affordable Housing) 2009 (SEPP ARH) – location of site within "accessible area" as defined under cl 4 of the SEPP ARH Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 The Hills Development Control Plan 2012 The Hills Local Environmental Plan 2012 Category: Principal judgment Parties: Gregg Ritchie (Applicant ) The Hills Shire Council (Respondent Representation: Solicitors: G Ritchie ( Litigant in person ) ( Applicant ) A Seton, Marsdens Law Group ( Respondent) File Number(s): 2017/ 00371918 Publication restriction: Nil

Judgment 1. The applicant, Mr Gregg Ritchie, commenced this Class 1 appeal under s 8.6 of the Environmental Planning and Assessment Act 1979 ('EPA Act') on 8 December 2018. It relates to The Hills Shire Council's ('Council') refusal of his development application (DA 1949/2017/ZA) ('the DA') lodged on 21 June 2017. The development application seeks consent for development described on the form submitted with the DA as "proposed change of use from Dual Occupancy approved under Council's LEP to a Dual Occupancy under the Affordable Rental Housing SEPP 2009". The application also seeks consent for subdivision of the site into two strata title residential lots (Exhibit B). 2. The Council's Statement of Facts and Contentions filed on 13 April 2018 (Exhibit A) records the background facts and statutory controls. It states that the attached dual occupancy was approved by the Council under The Hills Local Environmental Plan 2012 (LEP) on 11 August 2016. It has since been constructed on the site which is located at 34 Bruhn Circuit, Kellyville – the property descriptor being Lot 11 DP 1200890 ("site"). 3. According to the Council's evidence the development is approximately 475m walking distance of a serviced bus stop. Therefore, the land is not located within an "accessible area" as defined under cl 4 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). And, while dual occupancy development is permissible under the SEPP ARH it only applies to development in the Sydney region within an accessible area: cl 10 (2). Put simply, the Council contends that I have no jurisdiction to entertain the appeal. 4. The applicant, who was self-represented, initially asked the Court to accept that the land was less than 400m walking distance to several bus stops (some of which he accepted were not yet serviced but he believed would be serviced in the coming months). However, by the end of the hearing Mr Ritchie only relied on the two bus stops located on the northern and southern sides of Memorial Drive to refute the Council's claim that the development was not within an accessible area and that the Division of the SEPP did not apply to his DA. 5. To assist the Court the parties relied upon the oral and written expert evidence from Mr Robert Smith (for the applicant) and Mr Padraig Scollard, (for the Council). Their joint report is marked Exhibit 3. These experts were present at the site view at the commencement of the hearing when I walked to the various bus stops in order to understand their written evidence. They also gave some short oral evidence at the resumed hearing in Court. For the record I note that this matter was dealt with under s34AA of the Land and Environment Court Act 1979 (Court Act). However, given the factual dispute conciliation did not prove successful. That process was terminated early and the matter proceeded to hearing forthwith. 6. Ultimately, this case turns upon a finding as to whether the bus stops relied upon by the applicant and said to be less than 400m walking distance from the site satisfies the definition of "walking distance" as defined in cl4 of the SEPP ARH such as to engage jurisdiction under s10 (2). It goes without saying that the bus stop relied upon by the Council at the intersection of Memorial Drive and Mc Causeland Place is accepted to be about 475m walking distance from the site and is clearly outside the requisite 400m walking distance from the land and on that basis a reason why the SEPP is not engaged on those facts. 7. For the reasons that follow, I have determined that the site is not in an accessible area. Therefore, the ARH SEPP does not apply and the appeal must be dismissed.