On 24 July 2018, the Land and Environment Court handed down a decision which considered the meaning of “walking distance” under the State Environmental Planning Policy (Affordable Rental Housing) 2009.

The law

The State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) is a piece of legislation that was introduced to increase the supply and diversity of affordable rental and social housing in New South Wales.

Relevantly, the ARH SEPP states (with emphasis added):

10   Development to which Division applies

(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:

(a) the development concerned is permitted with consent under another environmental planning instrument, and

(b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.

(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.

(3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones.

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4 Interpretation—general

(1) In this Policy:

accessible area means land that is within:

(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or

(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or

(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.

…

walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings. 

…

Mr Richie’s development application and appeal

On 21 June 2017, Mr Richie lodged a development application with The Hills Shire Council for development at 34 Bruhn Circuit, Kellyville. The application sought to change the use on the land from a “dual occupancy approved under Council’s Local Environmental Plan” to a “dual occupancy under the Affordable Rental Housing SEPP 2009”. The application also sought consent for subdivision of the site into two strata title residential lots.

The issue and arguments

The issues ultimately in dispute was whether the bus stops relied on by Mr Richie satisfied the definition of “walking distance” under the ARH SEPP.

The Council had evidence that the Mr Richie’s development was approximately 475m walking distance from a serviced bus stop. Therefore, they argued that the dual occupancy development was not permissible under the ARH SEPP.

Mr Richie submitted that the development was less than 400m walking distance from several bus stops (some of which were not yet serviced), and so therefore the development could be approved under the ARH SEPP.

Observations from the Court

The Land and Environment Court found the following regarding the proposed walking route relied on by Mr Richie:

• pedestrians would be required to walk on the hard shoulder of a road, including in sections where the hard shoulder narrowed to 2m due to the existence of guard rail;
• there were no existing footpaths, and construction of the footpaths was not imminent;
• pedestrians would be required to cross a heavily trafficked road at a bend; and
• an alternative route proposed by Mt Richie would require a pedestrian to trek up an incline (behind guard rail), and over vegetated and grassed rough ground.

Overall, the Land and Environment Court said that the distances to the bus stops proposed by Mr Richie were less than 400m from the proposed development, but were not safe or reasonably practicable.

The Land and Environment Court preferred the faster and more reasonably practicable walking route was that proposed by the Council.

Key point to take away from this case

If you are considering developing land in the Sydney region, the ARH SEPP applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings only if all or part of the development is within an accessible area.

If you would like legal assistance, you can also contact Alyce Kliese directly by clicking here.