8th Hole Developments Pty Ltd ATF the 8th Hole Developments Unit Trust v Northern Beaches Council

Case •

[2025] NSWLEC 1059

•

05 February 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: 8th Hole Developments Pty Ltd ATF The 8th Hole Developments Unit Trust v Northern Beaches Council [2025] NSWLEC 1059
Hearing dates: Conciliation conference on 6 December 2024
Date of orders: 5 February 2025
Decision date: 05 February 2025
Jurisdiction:Class 1
Before: Miller AC
Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5000.

(2) The Applicant's written request pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011, seeking a contravention of the building height plane development standard set out in s 84(2)(c)(ii) of State Environmental Planning Policy (Housing) 2021, is upheld.

(3) The Applicant's written request under cl 4.6 of the Warringah Local Environmental Plan 2011, seeking a contravention of the non-discretionary floor space ratio development standard set out in s 108(2)(c) of State Environmental Planning Policy (Housing) 2021, is upheld.

(4) The appeal is upheld.

(5) Development consent is granted to development application No DA2024/0565 for the demolition of existing structures and construction of a seniors housing development comprising 10 independent living units at 68-70 Toronto Avenue, Cromer (Lot 31 and 33 in DP 630483), subject to the conditions in the annexure marked A.

Catchwords:

APPEAL – seniors housing – independent living units – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.28, 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 29, 37, 38

Warringah Local Environmental Plan 2011, cll 1.9, 2.3, 2.7, 4.3, 4.6, 6.2, 6.4

State Environmental Planning Policy (Housing) 2021, Ch 3 Pt 5 ss 79, 81, 84, 85, 88, 93, 95, 97, 108, Ch 4 s 147, Schs 4, 9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Department of Planning and Environment, Apartment Design Guide, 2015

Department of Planning and Environment, Seniors Housing Design Guideline, 2023

Category:Principal judgment
Parties: 8th Hole Developments Pty Ltd ATF The 8th Hole Developments Unit Trust (Applicant)
Northern Beaches Council (Respondent)
Representation:

Counsel:
M Staunton (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Northern Beaches Council (Respondent)
File Number(s): 2024/247609
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This appeal concerns a development application (DA2024/0565) for the demolition of existing structures and the construction of a seniors housing development comprising 10 independent living units at 68-70 Toronto Avenue, Cromer being Lots 31 and 33 in DP 630483. The Applicant lodged an appeal on 5 July 2024 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of the application. In exercising the functions of the consent authority on appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [28] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

  2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 6 December 2024. I presided over the conciliation conference.

  3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed with the Court on 20 December 2024.

  4. The agreement follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). Amendments to the plans were made to address the contentions identified by the Respondent.

  5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites (Agreed Statement), which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 application and its attachments, and the documents referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

  6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

  7. The development application is made with the consent of the owners of the land (refer Tab 2 of Class 1 Application) and is therefore in accordance with s 23 of the EPA Reg.

  8. The Respondent notified the original development application between 28 May and 18 June 2024. A total of 22 submissions were received. Further, a number of neighbours made oral submissions in respect of the application at the commencement of the conciliation conference. In reaching agreement, the parties have considered the concerns raised in the submissions.

Warringah Local Environmental Plan 2011

  1. The site is zoned R2 Low Density Residential under Warringah Local Environmental Plan 2011 (WLEP). Seniors Housing is prohibited in the zone in accordance with the WLEP, however, is permissible via the operation of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and cl 1.9 of WLEP which provides that State Environmental Planning Policies (SEPPs) prevail over WLEP in accordance with s 3.28 of the EPA Act.

  2. In accordance with cl 2.3 of WLEP, regard has been had to the zone objectives and the parties agree that the proposal is consistent with those objectives.

  3. Consistent with the requirements of cl 2.7 of WLEP consent is sought for the demolition of the existing buildings on site.

  4. Under cl 4.3 of WLEP the maximum permissible building height applicable to the subject site is 8.5m. However, s 108(2)(a) of the Housing SEPP provides a maximum height of buildings development standard for seniors housing of 9.5m. The proposed development complies with the maximum height of building development standard under the SEPP having a maximum height of 9.5m as illustrated on the architectural plans.

  5. The proposed development includes earthworks for the construction of the proposed basement level accordingly cl 6.2 of the WLEP applies. Based on the Geotechnical Report (prepared by Morrow Geotechnics dated 27 March 2024), the Stormwater Management Plans (prepared by Hydracor Consulting Engineers dated 12 December 2024) and the recommended conditions of consent, I have considered the matters required to be considered as set out in cl 6.2 of the WLEP.

  6. I am satisfied that the proposal complies with cl 6.4 of WLEP in respect of development on sloping land (landslide risk) having regard to the proposed plans, the Geotechnical Report (prepared by Morrow Geotechnics dated 27 March 2024) and recommended conditions of consent. In this regard it is noted that the Geotechnical report details a recommended excavation / construction methodology to ensure the stability of the site and its surrounds during construction. These recommendations have been incorporated into the conditions of consent.

State Environmental Planning Policy (Housing) 2021

  1. The provisions of Ch 3 Pt 5 of the Housing SEPP apply to the development being development for the purposes of “housing for seniors and people with a disability”. Section 79 provides that Pt 5 applies to land zoned R2 Low Density Residential and s 81 has the effect that housing for seniors and people with a disability may be carried out on land to which the Part applies with consent. Accordingly, notwithstanding being prohibited under WLEP I am satisfied that the proposal is permissible with consent by virtue of the provisions of the Housing SEPP.

  2. The principal development standards applicable to seniors housing are set out at s 84 of the Housing SEPP including: minimum site area; site frontage; maximum height of buildings; required setback for buildings greater than two storeys in height; and controls relating to servicing equipment. Based on the Agreed Statement and on the architectural plans and conditions of consent, I am satisfied that each of the matters in s 84 of the Housing SEPP are met by the proposed development. The Court notes that the parties have a difference of opinion in respect to whether the upper level of proposed Building B fully complies with the prescribed building height plane (that is, whether an additional setback above two storeys is required within planes that project at an angle of 45 degrees inwards from all side and rear boundaries) as established by s 84(2)(c)(ii). A clause 4.6 variation request has been submitted in this respect to ensure that there is no jurisdictional impediment to the granting of consent. Having regard to the parties’ agreement and the submitted clause 4.6 variation request I am satisfied that the variation, if required, is justified and supportable and that the proposed development is consistent with the objectives of the zone and the maximum height of building development standard.

  3. Section 85 provides that consent must not be granted to development for the purposes of hotels or independent living units unless the proposal complies with the relevant standards specified in Sch 4 which relate to accessibility and usability. An Access Report prepared by Accessibility Solutions (2 May 2024) has been submitted in this regard which confirms that the proposal complies with the relevant requirements.

  4. Section 88 provides that consent shall not be granted unless the consent authority is satisfied that a development under the Part will be occupied by seniors or people with a disability (or otherwise as specified). I am satisfied of this requirement having regard to proposed Condition 3.

  5. Section 93 provides requirements in respect of location and access to facilities and services for independent living units. On the basis of the parties’ agreement, the Access Report prepared by Accessibility Solutions (2 May 2024) and the concept plans for footpath works and a new pedestrian (Zebra) crossing at Toronto Avenue / Carrington Avenue Roundabout, I am satisfied of the relevant matters.

  6. In respect of s 95, I am satisfied that the proposal will be connected to reticulated water and sewerage infrastructure as required given existing infrastructure connections and the proposed plans.

  7. Section 97 requires that the consent authority have regard to the Seniors Housing Design Guideline (Department of Planning and Environment, November 2023) in determining a development application for the purposes of seniors housing. Further, it requires that development consent must not be granted unless the consent authority is satisfied the design of the seniors housing demonstrates that adequate consideration has been given to the design principles for seniors housing set out in Sch 8. These matters include: neigbourhood amenity and streetscape; visual and acoustic privacy; solar access and design for climate; stormwater; crime prevention, accessibility and waste management. I am satisfied that the relevant matters have been considered in the proposed design on the basis of the parties’ agreement, the amended plans and other documentation and the Statement of Environmental Effects prepared by Boston Blyth Fleming (May 2024) which details compliance.

  8. Section 108 includes non-discretionary development standards for independent living units. The parties agree and I accept that the proposal complies with all relevant standards with the exception of s 108(2)(c) which provides that the density and scale of the buildings when expressed as a floor space ratio (FSR) is 0.5:1 or less. The proposal has an FSR of 0.569:1 (that is an exceedance of 153.65m2 or 13.9%). Accordingly, a clause 4.6 variation request has been submitted in this respect prepared by Boston Blyth Fleming (18 December 2024). I have considered the request and am satisfied that consent should be granted notwithstanding the contravention of the non-discretionary FSR development standard in this instance as:

  1. The written request adequately establishes sufficient environmental planning grounds that justify the breach in the non-discretionary FSR development standard by demonstrating that the proposal is consistent / compatible with the established subdivision and built form characteristics of the site and achieves the aims of the Housing SEPP and the objectives of the EPA Act specifically in respect of the promotion of good design and amenity. Further the development responds to the site opportunities and constraints, demonstrates a bulk and scale consistent with that of surrounding development, and will not give rise to any unreasonable impacts on neighbouring properties.

  2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal achieves the objectives of the LEP FSR standard notwithstanding the non-compliance (noting the SEPP standard does not contain any objectives) and the objectives of the R2 Low Density Residential zone.

  1. Chapter 4 of the Housing SEPP applies to the design of residential apartment development and seeks to improve the quality of design of residential apartment development in New South Wales. It applies to residential apartment buildings which are at least three storeys (not including underground car parking storeys) and which contain at least four dwellings. The proposal provides for a part two and part three storey development and 10 dwellings. Therefore, the provisions are applicable. Section 147 requires that development consent must not be granted to residential apartment development unless the consent authority has considered compliance with the design quality principles contained in Sch 9, the Apartment Design Guide and the advice of any design review panel. I am satisfied that these matters have been adequately considered by virtue of the parties’ agreement, the amended plans and the submitted Architect’s Design Verification statement prepared by CDA Architects (3 May 2024). This statement also satisfies the requirement of s 29 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Consideration has been given as to whether the site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use and therefore contamination is considered unlikely. No further investigation in accordance with the SEPP is therefore required. Standard conditions are to be applied in respect of unexpected finds.

State Environmental Planning Policy (Sustainable Buildings) 2022

  1. State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) applies to the proposal with the development being a BASIX building. Accordingly, a BASIX Certificate has been submitted with the application (Certificate Number 1745832M_02) prepared by Taylor Smith Consulting.

Conclusion

  1. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

  2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

  1. The Court orders that:

  1. The Applicant is to pay the Respondent's costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5000.

  2. The Applicant's written request pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011, seeking a contravention of the building height plane development standard set out in s 84(2)(c)(ii) of State Environmental Planning Policy (Housing) 2021, is upheld.

  3. The Applicant's written request under cl 4.6 of the Warringah Local Environmental Plan 2011, seeking a contravention of the non-discretionary floor space ratio development standard set out in s 108(2)(c) of State Environmental Planning Policy (Housing) 2021, is upheld.

  4. The appeal is upheld.

  5. Development consent is granted to development application No DA2024/0565 for the demolition of existing structures and construction of a seniors housing development comprising 10 independent living units at 68-70 Toronto Avenue, Cromer (Lot 31 and 33 in DP 630483), subject to the conditions in the annexure marked A.

……………………….

H Miller

Commissioner of the Court

Annexure A

**********

Decision last updated: 05 February 2025

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