Australian Nursing Home Foundation Limited v Ku-ring-gai Council

[2019] NSWLEC 1205

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205
Hearing dates:	31 October 2018; 1-2 November 2018
Date of orders:	07 May 2019
Decision date:	07 May 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders:  (1)   Leave is granted to the applicant to amend the development application and to rely upon amended plans in Exhibit L. (2)   The appeal is upheld. (3) Development consent is granted for Development Application DA 0418/15 to demolish structures (except dwelling at 25 Bushlands Avenue) and construct a residential aged care facility, basement car parking and landscaping works under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at Lots 2, 3 & 4 DP 578395 known as 25, 25A and 27 Bushlands Avenue, Gordon in accordance with the amended plans in Exhibit L and subject to the agreed conditions in Exhibit E (now marked and annexed as “Annexure A”). (4)   The exhibits are returned apart from Exhibits 1, 7, A, E, K and L.
Catchwords:	DEVELOPMENT APPLICATION: State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (NSW) – high care residential care facility – cl 26 location and access to facilities – development standard or prohibition – permissibility
Legislation Cited:	Environment Protection and Biodiversity Conservation Act 1999 (Cth) Interpretation Act 1987 Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Pittwater Local Environmental Plan 2014 State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 State Environmental Planning Policy No 55– Remediation of Land Threatened Species Conservation Act 1995
Cases Cited:	Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2018] NSWLEC 131 Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61 Fairfax Digital Australia & New Zealand v Kaza [2018] NSWCA 77 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Georgakis v North Sydney Council (2004) 140 LGERA 379 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Sztal v Minister for Immigration (2017) 91 ALJR 936; [2017] HCA 34 Taylor v Public Service Board (1976) 137 CLR 208 Warringah Shire Council v Punnett & Associates Pty Limited (2001) 122 LGERA 1; [2001] NSWCA 480 Wehbe v Pittwater Council (2007) 156 LGERA 446 Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143 Wilson Parking 1992 Pty Ltd v Council of the City Of Sydney [2014] NSWLEC 12
Texts Cited:	Department of Infrastructure, Planning and Natural Resources, A guide for councils and applicants – Housing for seniors or people with a disability (May 2004) Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	Australian Nursing Home Foundation Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: C McEwen SC with M Staunton (Applicant) J Farrell (Respondent)   Solicitors: Thomson Geer (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/14219
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal against Ku-ring-gai Council’s (“Council”) refusal to grant consent to a development application (DA 0418/15) for the construction of a residential aged care facility for 84 “high care” residents on land at 25, 25A and 27 Bushlands Avenue, Gordon (“the site”).

2. The site is located within the R2 Low Density Residential zone under the Ku-ring-gai Local Environmental Plan 2015 (“KLEP”).

3. For the purposes of cl 1.4 ‘Definitions’ of the KLEP, the proposal is defined as a “residential care facility”. Development for that purpose is a prohibited use in the R2 zone; and the application relies on the operation of the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (“the SEPP”).

4. The Council has identified three legal reasons why the development should be refused, namely:

Biodiversity Prohibition – Contention 1

1. The development is prohibited because part of the site is mapped “Biodiversity” under cl 6.3 of the KLEP and, by operation of cl 4(6) and Sch 1, cl (b) and cl (d) the SEPP, the Policy does not apply to the site.

Clause 26 of the SEPP – Contention 2

2. The development is prohibited by cl 26 of the SEPP because the development does not satisfy the requirements of the clause which is a prohibition and thereby not amenable to variation under cl 4.6 of the KLEP.

Heritage – Contention 3

3. The development will have unacceptable adverse impacts on the local Heritage Item “Birralee” (at 25 Bushlands Avenue), and is therefore in breach of cll 32 and 33 of the SEPP.

5. The contentions outlined arise from the following facts.

Facts

6. The site comprises 3 separate allotments which are proposed to be consolidated. The total land area is 7,406m2. Erected on the site are three dwelling houses, three swimming pools, one tennis court and ancillary structures. All of these structures are to be demolished apart from the two-storey Heritage Item known as 25 Bushlands Avenue (Birralee). This 1915 heritage dwelling remains highly intact and the proposal is to use the building partly as office space for staff and as activity/dining rooms for the residents.

7. Located towards the rear and central half of the site is 3,600m2 of Sydney Turpentine Ironbark Forest (“STIF”) vegetation which has been identified as “biodiversity” significant land under the KLEP. In addition, STIF is listed as an Endangered Ecological Community under the now repealed Threatened Species Conservation Act 1995 and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

8. The proposal is for a “high care” residential care facility and the applicant has agreed to the imposition of a condition limiting residents to those who require high care (Condition 98, Exhibit 7). All services and facilities, as required by cl 26 of the SEPP, are proposed to be provided on the site. The particular facilities and services available for these “high care” residents are detailed in the letter by Evolution Planning dated 13 January 2017 and in the affidavit of Ms Louie (Exhibit C, at paragraphs 15-20).

9. The site is located to the south west of the Gordon Town Centre on a street that is predominately residential.

10. Bushlands Avenue has a sealed width of approximately 7m, with kerb and gutter on the northern side of the road and a grass verge with no kerb and gutter on the southern side. A footpath is located on the northern side of the road.

11. The nearest public bus stop to the site is located at the frontage of 786 Pacific Highway Gordon, which is a 670m walking distance from the site boundary. The Gordon town centre, which is generally represented by B2 Local Centre zoned land north of St Johns Avenue, is a 530m walking distance from the site. The site is within 710m walking distance from the Gordon Railway Station.

12. The determination appealed against was made by the Sydney North Planning & Assessment Panel (“Panel”), and by operation of s 8.15(4) of the Environmental Planning and Assessment Act1979 (“EPA Act”), the Council, although the respondent in the proceedings, is subject to the control and direction of the Panel in connection with the conduct of the appeal. I understand that the Panel has been notified of the proceedings and its assessment reports and recommendations are in evidence (Exhibit 2, Vol 2).

Expert evidence

13. To assist the Court, the parties retained the following experts:

Applicant	Respondent
Paul Grech, Town Planning	Jonathan Goodwill, Town Planning
Ross Shepherd, Landscaping	Tempe Beaven, Landscaping
John Travers, Ecology	John Whyte, Ecology
Brian McDonald, Heritage	Christine Hay, Heritage

14. Some of these experts prepared individual statements before they conferred and prepared joint reports, supplementary reports and plans and sketches, which reflected recommended amendments to the design.

Evolution of the final DA and plans

15. The applicant relies on an amended application in the appeal which is different to that lodged and assessed by the Council staff and the Panel in 2017. The final amended plans are Exhibit L as modified by the proposed agreed conditions of consent (Exhibit E).

16. By way of background, it is of assistance to appreciate how the current application evolved based on the evidence.

17. The Council’s staff prepared an assessment report dated 8 March 2017, recommending refusal of the DA. The report was referred to the Panel and it deferred a determination of the DA for the following reasons:

“Reasons for Deferral

The panel has visited the site and considered the report of the Council staff as well as the submissions of the local residents and the applicant.

In relation to the reason for refusal in respect of location and access (reason 1) the Panel notes cl 26 of the Seniors SEPP is a development standard and able to be varied pursuant to cl4.6 (which has been submitted by the applicant). Having regard to the judgment of Justice Robson in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 the Panel considers the proposal for the provision of services on site, visiting professionals and the provision and operation of a bus for the use of residents addresses the objective of the provisions to provide development in a manner suited to residents who are both mobile, independent active and frail. The Panel considers that the site specific circumstances and facilities proposed would be a better planning outcome in the circumstances of this case and therefore was supportive of the cl 4.6 variation of cl 26 of the SEPP.

In relation to the concerns regarding heritage and streetscape, the panel considered that the proposal does have merit but considers it needs further detail and amendments as follows:

(1) The western building should be set back to the predominate alignment of the existing heritage dwelling on the site.

(2) Courtyard 1 a that rear of the existing heritage item should be increased in size and allow deep soil to allow the growth of large, centrally located (15m plus) trees to maintain the backdrop to the heritage item. This may require the design of the basements to be amended.

(3) The vegetation management plan should describe how the Sydney Turpentine Ironbark forest will be managed for its long term viability. The vegetation management plan should require retention of the Himalayan Cedar.

(4) The skillion roof over the lift is to be a traditional hip to match the remainder of the development.

(5) The rear setback is to be increased to 12 metres minimum to reduce the adverse impact on the St Johns Avenue Conservation Area.

(6) Review and resubmit traffic report to consider the impact of the service vehicles and community bus in terms of traffic generation and adequacy of Bushlands Avenue to safely accommodate the anticipated vehicle movements.

(7) Review and resubmit acoustic report to consider the impact from service vehicles and community bus in immediate adjoining residents, particularly from 9pm to 6am .

(8) The development should comply with controls 3 and 4 of cl 23.2 of the Ku-ring-gai Development Control Plan to achieve a 4 star Green Star rating.

(9) Increase the disabled /assessable car parking spaces by 2 plus one additional ordinary space.

(10) The wall opening to the ramp on the southern end of the western elevation is to be fully enclosed.

(11) A plan of management is to be prepared to establish operation al practices of the facility including but not limited to the operation of the community bus, and the loading and unloading of service vehicles. All loading and unloading of service vehicles, waste services and community bus is to be undertaken in the basement. The community bus should also provide transport for staff to Gordon Station at the time when working shifts change.

(12) Furthermore, it requested amended plans to be submitted to Council by 5 June 2017 addressing the above matters. The Panel requests the amended plans to be assessed by the Council staff and a supplementary report to be submitted to the panel one month after receipt of the amended plans after which time the Panel will consider the proposal.”

(North Sydney Planning Panel Supplementary Assessment Report dated 2 November 2017 (Exhibit J).

18. According to the evidence, the application was so amended and renotified in accordance with Part 25 of Ku-ring-gai Development Control Plan (“Council’s DCP”). The amended application was then scheduled to be considered by the Panel on 15 August 2017. However, on that day, the Panel advised that the meeting was to be postponed so that a further assessment of acoustic issues raised by submissions could be undertaken.

19. As it happened, a further acoustic assessment was undertaken and reported. This report and the other amendments were assessed by the Council against each of the deferral reasons and resident submissions and were reported to the Panel. The Panel resolved to refuse the amended application on the following basis:

• the cl 4.6 written request was inadequate

• the proposal will have adverse impact on the Heritage Item at No. 25 Bushlands Avenue (Birralee);

• the proposal fails to satisfy the Design Principles in Part 3 of the SEPP and aims of the policy;

• the proposal does not comply with the provisions of the Council’s DCP;

• the landscape plans are inadequate; and

• the proposal will result in unacceptable noise.

20. At this point, the applicant appealed the decision to the Court.

21. In accordance with the Court’s directions, the Council filed contentions for the purposes of the appeal and the parties retained the experts, as identified, in the disciplines of town planning, heritage, arboriculture/landscaping, ecology traffic and acoustics. These experts conferred and produced joint reports which recommended further amendments to the design. With the Council’s consent, the recommended changes were incorporated in Exhibit L. (Noting that the amendments are described in the Schedule of Amendments dated 1 November 2018 annexed to Exhibit L; and the final plans incorporate the design changes in Exhibits F (5 plans); and the southern elevation G referred to in the heritage/landscape experts’ supplementary report Exhibit 10 and H) (T62:2).

22. These changes, it was agreed, satisfactorily addressed most of the Council’s concerns about the impact of the development to the frontage and eastern side of Heritage Item, Birralee. The changes include:

• Removal of the terrace at the southern end of the proposed eastern wing and re-establishment of the lawn and garden beds to the eastern side of Birralee;

• Planting of an additional canopy tree between Tree 14 and the proposed eastern wing;

• Deleted front path;

• Removal of seating;

• Realignment of garden edges to reflect existing lines;

• Removal of proposed tree along front setback to provide views from Bushlands Avenue;

• Gaps in planting are to be infilled with planting typical of Federation period;

• Metal palisade fence without finials in the existing location;

• Foundation garden planting along eastern elevation with infill planting typical of Federation planting;

• RW tank set down 600mm with lawn above;

• Lawn and garden bed extending to rear of Birralee;

• Lawn and entry path association to be retained as existing.

23. The amended application also incorporates the agreement by the relevant experts that garden recordings of shrubs, groundcovers and finishes and plant selection - as well as an interpretation of the Heritage Item is - to be addressed by conditions. Furthermore, if possible, retention of Trees 24, 25 and 26, with the possibility of retention of Trees 80, 81, 82, 84 and 91 subject to further investigation of levels. It was also agreed that Tree 57 could be transplanted.

24. The amended plans also incorporate relocation of the retaining walls to the tapered area of Courtyard 2 closer to the western wing between the central wing and Courtyard 2 to enable retention of Trees 80 and 81. Noting, that the heritage experts did not agree that Tree 23 Cupaniopsis anarcardioides (Tuckeroo) should be retained.

25. With respect to the south elevation – the western wing, the experts agreed that the first floor single window should be modified to three windows and that the head height of the garage should be lowered as indicated on the Sketch plan attached to Exhibit 10 as reflected in Exhibit L. And, with respect to the central wing, Mr McDonald tabled a sketch plan showing the central wing shortened to align with the southern elevation of the garage and the northern wall of Birralee. The experts accepted this solution subject to the provision of elevations and sections with RLs being provided (see: Exhibit L).

26. The experts also agreed that subject to the changes to the front setback to the western wing as discussed in the supplementary report Exhibit 10 and detailed in SKO 1 (subject to the resolution of levels between the central and western wing), that the Council’s concerns with this area were satisfactorily addressed. The changes included:

• Deleted front path;

• Existing levels are to be retained as much as possible within the front setback of western wing;

• Existing dry-stone retaining wall is to be retained;

• Rainwater tanks to be relocated in driveway or away from the wall of the building to provide garden bed for tree and shrub planting;

• Proposed Jacaranda is to replace Tree 89/Acer negundo (Box Elder);

• Garden planting to be sympathetic to Federation period;

• Substation to be relocated closer to driveway if possible or to a less visible location where it would not impact on the curtilage of Birralee.

27. Lastly, Mr Shepherd tabled an amended sketch ‘SK02’ of the driveway indicating planters for hedge planting to screen the retaining walls on either side. The heritage experts disagreed as to whether the hedges will reduce the visual impact of the overall driveway entrance – with Ms Hay contending this remains inharmonious in the streetscape. (I address this streetscape heritage contention later).

28. During the hearing, the heritage experts produced a further plan marked ‘Exhibit G’ showing the agreed materials and finishes for the southern elevation to Bushland Avenue – which is also part of Exhibit L.

Public Submissions

29. As can be appreciated from the preceding discussion the amended application that I am being asked to approve is different to that originally lodged with the Council which was notified in accordance with the Council Policy and generated significant community attention. Following notification, the Council received in excess of 108 letters and a petition in opposition to the development and 227 letters in support (predominantly form letters).The views expressed by these submitters are summarised in the Panel’s reports and the actual submissions are included in the Council’s bundle at folios 364-374 of Exhibit 2, Volume 2. Generally speaking, those in support of the development speak about a need for a residential aged care home for elderly Chinese and South East Asian people living in Northern Sydney. In particular, a seniors living development for high care residents which supports their Chinese language and culture. The submitters against the development, believe that:- the proposal is not permissible under the relevant planning controls for the reasons agitated by the Council; the development generates the loss of significant trees and vegetation on the site and this will have adverse impacts for the STIF located in the rear of the site and on adjoining sites. The development provides inadequate setbacks of walls from boundaries and the design by its bulk and scale constitutes an overdevelopment of the site which results in unacceptable amenity impacts driven by the location of the driveway including noise, increased traffic, light spillage, parking issues for the street and adverse impacts on the Heritage Item and its landscaped curtilage.

The site view

30. A number of submitters were in attendance at the Court’s view held at the commencement of the hearing onsite, including the immediate neighbours. Some of them gave oral evidence to supplement their written evidence including the owner of the adjacent property to the east of the site at 23 Bushlands Avenue, Ms Davey (Exhibit 12). This property contains a single storey dwelling house and swimming pool in the backyard. Ms Davey invited the Court into her rear yard so that I could better appreciate her objection to the proximity of the built form at her side boundary given its overbearing bulk when viewed from her property. Ms Davey expressed concern about the viability of her 3.5 m landscaped hedge adjoining that common boundary with the site. She expects that the hedge will not receive adequate solar access due to the setback of the proposed built form. At that time, I also viewed the adjacent property to the west of the site, known as 29 Bushlands Avenue, located on the lower side of the development. This property contains a single storey dwelling house with a two storey rear wing and a detached garage. These neighbours were equally concerned about the overbearing bulk and scale of the development, its setback from their side boundary and the likely negative impacts for the residential amenity and privacy given its proximity. They were also concerned about the proposed removal of significant trees and vegetation and the impacts this will generate on the remnant endangered STIF which extends from the site into their rear yard. Some of the concerns expressed by these residents were repeated by other submitters when they addressed the Court during my view of the locality including from the identified key vista opposite the site in Bushland Avenue looking toward Birralee. Collectively, it is fair to say that the objectors who gave oral evidence at the site and those who have relied on their written objections strenuously oppose the development. They support the Council’s position that the use is prohibited under the current planning controls and if approved will generate a bulk and scale of a commercial nature which is entirely out of character with this low density residential street, which in turn will compromise the heritage values of the heritage dwelling Birralee and its garden curtilage.

31. Apart from the local objectors, I also received some expert evidence during the view. At that time, the parties’ heritage and landscape experts invited me to appreciate the scale and bulk of the proposed development and its impact on the public view of the Heritage Item and its garden curtilage from opposite the site. Ms Hay and Mr McDonald disagreed about the impact of the development from this key vista with Ms Hay expressing the view that she believed that the integrity of the Heritage Item and its curtilage will be compromised by the development’s bulk and scale. (Although, I note that this opinion was given before further amendments to that elevation were agreed and incorporated into the final plans - Exhibit L).

32. Having given some context to the application and the issues between the parties, I will now set out the statutory framework relevant to the Council’s first reason for refusal the Biodiversity – Contention 1.

BIODIVERSITY - CONTENTION 1

The planning Controls

33. Clause 4(1)(a) of the SEPP describes the land to which the SEPP applies:

4 Land to which Policy applies

(1) General

This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:

(a) development for the purpose of any of the following is permitted on the land:

(i) dwelling-houses,

(ii) residential flat buildings,

(iii) hospitals,

(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries …

34. Clause 4(6) of the SEPP identifies the land to which the Policy does not apply, relevantly land identified in Schedule 1 of the SEPP:

(6) Land to which Policy does not apply

This Policy does not apply to:

(a) land described in Schedule 1 (Environmentally sensitive land) …

35. “Environmentally sensitive land” is described in Sch 1 of the SEPP as follows:

Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions:

(a) coastal protection,

(b) conservation (but not land identified as a heritage conservation area in another environmental planning instrument),

(c) critical habitat,

(d) environment protection,

(e) open space,

(f) escarpment,

(g) floodway,

(h) high flooding hazard,

(i) natural hazard,

(j) (Repealed)

(k) scenic (but not land that is so identified if:

(i) the land is within a residential zone in which development of two storeys or more in height is permitted, or

(ii) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height),

(l) water catchment,

(m) natural wetland.

(Emphasis added)

36. The words “conservation” and “environment protection” are not defined in the SEPP.

37. The issue is then whether any land identified in KLEP satisfies the relevant categories in Sch 1 of the SEPP.

KLEP

38. Clause 6.3 of the KLEP provides:

6.3 Biodiversity protection

(1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including:

(a) protecting biological diversity of native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities, populations and their habitats, and

(d) protecting, restoring and enhancing biodiversity corridors.

(2) This clause applies to land identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a) the impact of the proposed development on the following:

(i) any native vegetation community,

(ii) the habitat of any threatened species, population or ecological community,

(iii) any regionally significant species of plant, animal or habitat,

(iv) any biodiversity corridor,

(v) any wetland,

(vi) the biodiversity values within any reserve,

(vii) the stability of the land, and

(b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is consistent with the objectives of this clause, and

(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided:

(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.

(5) In this clause:

biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.

39. The relevant Terrestrial Biodiversity Map (Terrestrial Biodiversity Map–BIO_014) is reproduced below. The site is outlined in red.

40. The Map shows that part of the site is mapped “biodiversity” on the Terrestrial Biodiversity Map.

41. The issue is then whether the description “biodiversity” on the Terrestrial Biodiversity Map under cl 6.3 of the KLEP satisfies the relevant categories in Sch 1 of the SEPP.

The Council’s position – Contention 1

42. Council has provided written submissions dated 29 October 2018 addressing Contention 1 (CWS). They acknowledge the well-established general principles to be applied in construing statutes and subordinate legislation such as the SEPP - consideration of the text, context and purpose.

43. They also emphasise the Court’s recent remarks that the ordinary meaning of a word may after consideration be displaced by its context and purpose: see Gleeson J in Fairfax Digital Australia & New Zealand v Kaza [2018] NSWCA 77 at [130]-[131] citing Sztal v Minister for Immigration (2017) 91 ALJR 936; [2017] HCA 34 at [14]; see also Gageler J at [35]-[37] and the plurality in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381; [1998] HCA 28 at [69]. And, in relation to intrinsic or grammatical aids to interpretation, they state that the apparent scope of a section may also be limited by other sections in an Act.

44. These introductory submissions are made, no doubt, to support the Council’s position that I should follow the approach of this Court in Whittaker v Northern Beaches Council(No 3) [2018] NSWLEC 143 (“Whittaker”). That is, when focussing on the text of the relevant provisions of the LEP and the SEPP, whilst at the same time having regard to its context and purpose, to recognise that recent authorities have generally supported a textual approach to determining whether land can be categorised by reference to a “like description” of land itemised in Sch 1 of the SEPP: Warringah Shire Council v Punnett & Associates Pty Limited (2001) 122 LGERA 1; [2001] NSWCA 480; (“Punnett”) and Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122 (“Pepperwood”).

45. Starting with the chapeau to Sch 1, the Council submits that for land to be excluded from the SEPP it must be identified by another environmental planning instrument within any of the following three specified categories:

1. the descriptions in paragraphs (a) to (m) (category 1);

2. “like descriptions” to the descriptions in paragraphs (a) to (m) (category 2); and

3. “descriptions that incorporate any of the …words and expressions” used in paragraphs (a) to (m) (category 3).

46. There is no dispute that the KLEP, in this case, qualifies as another “environmental planning instrument” for the purposes of Sch 1.

47. Accordingly, the issue is whether the portion of the site marked “biodiversity” falls within any of the specified categories in the chapeau to Sch 1 of the SEPP.

48. Put simply, the Council’s position is that the site will only fall within category 2 if the expression “biodiversity” is a “like description” for the expression “conservation” or “environment protection”. And, if I determine that it is a “like description”, then the SEPP does not apply and the proposed development is prohibited on the portion of the site identified as “biodiversity“. If that is not my interpretation, then the SEPP applies and the development is permissible on that portion of the site (CWS at [72]).

49. The Council submits that the meaning of the phrase “like description” in Sch 1 of the SEPP was correctly determined in Whittaker at [43]- [44], namely:

1. the expression “like description” should be afforded a wide meaning and means something more than the ‘same’ or ‘identical’ but encompasses the concept of ‘similarity’: Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 at 71 B per Holland J ; and

2. rigidity must be eschewed in favour of a “deliberate flexible verbal formula” in the identification of “environmentally sensitive lands” in Sch 1 of the SEPP. So much was emphasised by Bignold J in Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61 (“Druitts”) in respect of an earlier incarnation of the SEPP (at [14], [15] and see also [21]).

50. The Council also draws my attention to the fact that the word “biodiversity” is specifically defined under the dictionary to the KLEP as:

the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.

51. The Council contends that the expression “biodiversity” is a like description for “environment protection”.

52. Accepting that the term “environment protection” is not defined in the dictionary, the Council invites me to analyse the expression in its constituent parts. First, it submits that the EPA Act defines “environment” as “all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings”.

53. “Protection”, according to the Council’s submissions has the meaning as defined in the Oxford English Dictionary online as “the action of protecting, or the state of being protected”: “protecting” is further defined as “1. Keep safe from harm or injury…1.1 often as adjective protected: aim to preserve (a threatened species or area) by legislating against collecting, hunting or development”.

54. The Council then submits that it follows that “environment protection” should be interpreted as the protection of the surroundings of humans.

55. That said, and whilst acknowledging that these definitions are relevant and consistent with the principles of statutory construction, the Council invites a textual approach to be followed in determining whether the site can be categorised by reference to a “like description” of land itemised in Sch 1 of the SEPP (Pepperwood at [36] to [37]; Punnett at 13and Whittaker at [46]). That is, in regard to the operation of expressions within a particular section, the Council submits that “Their meaning and operation must be read with and accommodated to the rest of the section” per Barwick CJ in Taylor v Public Service Board (1976) 137 CLR 208 at 213. Therefore, in this case, the term “environment protection” must be read by reference to the other expressions in Sch 1 so that the terms have some work to do. And, if one accommodates the term “environment protection” by reference to other operative terms in Sch 1 (i.e. coastal protection, land identified as a heritage conservation area in another environmental planning instrument, escarpment, flood way, natural hazard, scenic, natural wetland), the Council maintains that the expression leaves little scope for the meaning of “environment protection” to relate to any other matters outside of “biodiversity”, defined as “the variety of living animal and plant life from all sources, and includes diversity within between species and diversity of ecosystems”.

56. Additionally, the Council submits after having regard to the objectives of the “biodiversity” mapping clause when identifying whether “biodiversity” is like the verbal description of “environment protection”, there are four identical words in cl 6.3(1) which identify the land by the description “protection”. These include:

1. “protection, maintenance and improvement the diversity and condition of native vegetation and habitat” (cl 6.3(1));

2. “protecting biological diversity of native fauna and flora” (cl 6.3 (1)(a));

3. “protecting the ecological processes necessary for their continued existence” (cl 6.3(1)(b));

4. encouraging the recovery of threaten species, communities, populations and their habitats (cl 6.3 (1)(c));

5. “protecting restoring and enhancing biodiversity corridors” (cl 6.3(1)(d)).

57. Relying upon the reasoning of Tobias JA in Pepperwood at [39] – [41], the Council submits that, in this instance, there are four express verbal markers in the “biodiversity” mapping objectives that use the word “protection” to identify land by reference to the values to be protected. Therefore, the “biodiversity” mapping objectives are of material assistance to the interpretive task. In short, the terms “biodiversity” and “environment protection” dovetail in the context of Sch 1, and therefore are “like descriptions”. As such, the Council maintains that portion of the land is excluded from the SEPP.

58. The Council then deals with the next issue as to whether “conservation” is also capable of being a “like description” to “biodiversity”. Again, the word “conservation” is not defined in the SEPP and the Council relies on the Oxford English Dictionary online definition namely: “prevention of wasteful use of the resource … 1.1 preservation, protection, all restoration of the natural environment and wildlife” (with modifier “nature conservation”).

59. Again, adopting a textual approach as referred to earlier and discussed in Pepperwood, Punnett and Whittaker, the Council submits that the meaning of the word “conservation” must be read with, and accommodated to, the rest of the section. It submits that there is no reason, based on the words of the text in Sch 1, to conclude that the expressions should be independent and mutually exclusive. And, when considering the term “conservation” in context by reference to the other operative terms in Sch 1, the Council submits the expression would no doubt embrace “conservation” of “biodiversity” and “conservation” may also potentially embrace “natural and other resources”. The Council asks me to have regard to s 1.3(a) of the EPA Act which contains the broad objective of the Act; namely:

to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural another resources

60. This objective, it is submitted, is to be contrasted with s 1.3(e) which contains a more narrow objective of the Act, being:

to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats

61. Ultimately, the Council submits that the expression “conservation” is perhaps not as close a match to the expression “biodiversity” because “conservation” may embrace additional matters. Nonetheless, the Council contends that if the Court were to take a refined and narrow approach to the expression “conservation”, and rely on the definition in the Oxford Dictionary and in s 1.3(e) of the EPA Act, it would find that “biodiversity” would be a “like description” of “conservation”.

62. For all those reasons, the Council invites me to find that the description “biodiversity” as used in the KLEP to identify the portion of the site shaded green on the Terrestrial Biodiversity Map is a “like description” of the expressions “environment protection” and “conservation” in Sch 1 of the SEPP. The result being that cl 4(6)(a) is engaged, and therefore the SEPP does not apply to the site and the proposed development is prohibited.

The applicant’s position – Contention 1

63. The applicant’s written submissions dated 30 October 2018 address Contention 1 (AWS). They outline a primary position (AWS at [28] - [34]) and an alternate submission (AWS at [35] – [49]. They also annex a reply to the applicant’s submissions.

64. They state that the controversy to be resolved is whether the description “biodiversity” is a “like description” for “conservation” and “environment protection” (the question). There is no need to resort to dictionary definitions. The words need to be considered within the framework of the chapeau to Sch 1 of the SEPP, namely:

Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions ….

65. The critical issue in this case is whether the land is identified.

66. The applicant contends that the words must perform an identification function. It is not enough that they are a “like description”, the word or expression must also identify the land. The ordinary meaning of “environment protection” and “conservation” are entirely different to the meaning of “biodiversity”.

65. “Environment protection” and “conservation” connote protecting or conserving something whereas “biodiversity” has nothing to do with protection or “conservation”. “Biodiversity” simply describes an attribute of the land. In this case, the identification of the land on the Terrestrial Biodiversity Map does nothing more than identify that the land at issue in this case has “biodiversity” as an attribute.

66. The applicant contends that Council has not considered the structure of cl 6.3 of the KLEP when formulating its arguments. It submits that the identification function required by the chapeau to Sch 1 is performed by the Map which identifies the land as “biodiversity” not the objectives of the clause. That is, the identification task is complete before cl 6.3 is further engaged and the objectives of cl 6.3(1) are only given work to do by cl 6.3(4):

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is consistent with the objectives of this clause, and …

69. In other words, the starting point is cl 4 of the SEPP and in particular cl 4.1 “This Policy applies …but only if…” and then it sets out certain matters. Turning to cl 4.6, it states “This Policy does …in Schedule 1”. There is a reference to “description” but that is to be understood as the “description” in cl 4.6 because Sch 1 refers to “land identified”. The way one reads it is, that it does not apply to land described in Sch 1 as it states “land identified”.

70. On that basis, the objectives in cl 6.3(1) cannot be said to identify the land or perform any identification function but rather set principles (or goals) with which any proposed development on the land must be consistent. They serve the purpose of attempting to ensure that the development of the land is consistent with the objective “…to protect, maintain and improve the diversity and condition of native vegetation and habitat, including …” Not dissimilar to the Court’s view about the purpose of the zone objectives in Pepperwood at [41].

71. The applicant submits this answers the question posed by Contention 1. Therefore, I should find that the description “biodiversity” as used in the KLEP to identify the portion of the site shaded green on the Terrestrial Biodiversity Map is not a “like description” of the expressions “environment protection” and “conservation” in Sch 1 of the SEPP. The result being that cl 4(6)(a) is not engaged on the facts of this case, and therefore the SEPP does apply to the site and the proposed development is not prohibited.

Applicant’s alternative submission

72. If I do not accept its primary submission, the applicant makes the following alternate submissions.

73. The Dictionary to the KLEP defines “biodiversity” to mean:

biodiversity or biological diversity means the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.

74. The expression “environment protection” is not defined in either instrument nor are the words “environment”, “protection” or “conservation”. In those circumstances, s 11 of the Interpretation Act 1987 provides words in instruments have the same meaning as in the Act or the relevant provisions of the Act, under which the instrument is made.

75. The KLEP and the SEPP are made under the EPA Act and the EPA Act defines “environment” in s 1.4(1) to mean:

environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.

76. Relevantly, the applicant submits that the EPA definition is not limited to the natural world. And, if the definition of “environment” from the EPA Act is imported into the expression “environment protection”, then that expression means the protection of all aspects of the surroundings of humans. Whereas “biodiversity” is an aspect of the surroundings of humans it does not cover all aspects. The concept of “environment” is much broader. The applicant submits that this is an important distinction between “environment protection” and “biodiversity” protection. Moreover, that the use of the word “environment” indicates an intention to provide a much higher level of protection – all aspects of the surroundings of humans rather than just the protection of “biodiversity”.

77. The applicant further submits that this interpretation is confirmed when you consider the structure of the KLEP.

78. The KLEP uses the expression “environment protection” as a heading to the E zones in cl 2.1. The objectives of the E zones identify land by reference to a “high” or “special” level of values which are not limited to biodiversity (i.e. ecological, scientific, cultural, aesthetic). The structure in the KLEP is that the biodiversity mapping overlays the zonings and extends to land which is not zoned as “environment protection”. The objectives of the E zone seek to protect those “high” or “special” values of the environment by limiting development allowed on that land. The E zones have identified the land as “environment protection” by the use of that heading.

79. Whereas cl 6.3 does not operate in the same way. Instead, it requires an investigation of the land through the development assessment process so as to identify the “biodiversity” values of the land and then determine how the impacts of the development on those values will be managed. The purpose of the clause is to assess “biodiversity” values. Not all “biodiversity” values are always present, hence the cl 6.3(a) uses the words “any” to indicate the particular aspect of “biodiversity” present.

80. And, while the Court in Pepperwood accepted that the objectives can be used to identify the land, those objectives need to use the words or expression in the Sch 1 of the SEPP or use “like descriptions”. In accordance with Druitts, the applicant submits that you cannot split an expression “environment protection” and use only the word “protection”. None of the objectives to cl 6.3 uses the expression “environment protection” or “protection”. By just focussing on one word alone from the expression would in effect be adding, for example “protection” to Sch 1 of the SEPP, a new separate category. While the objectives in cl 6.3 use the word “protection” or like words they do not use “environment protection” and as outlined earlier the natural environment being a single aspect of the surroundings of humans is not a “like description” for “environment” which includes all aspects of human surroundings which could be natural or otherwise.

81. Additionally the applicant submits that the context does not support the view advocated by the Council. Schedule 1 to the SEPP includes the expression “coastal protection”. In the event that the expression “environment protection” was construed as protecting all or any aspects of the surroundings of humans then it would also cover “coastal protection”. Therefore, the context also suggests that the description “environment protection” refers to a much higher level of protection being all aspects of the surroundings of humans rather than protection of just one aspect being “biodiversity”. When the SEPP intends to identify a single aspect of the environment, it does so specifically i.e. “coastal”.

82. For those reasons the Court could not be satisfied that the word “biodiversity” is a “like description” for “environment protection”.

83. Lastly, the applicant submits that the word “conservation” is not a “like description” for “biodiversity”. And it seems the Council also acknowledges as much at [91] of its submissions where it concedes that “conservation” embraces additional matters and therefore is not a like term on that basis. Again, it is submitted that the Council’s submissions are contrary to the textual approach as the word “conservation” is not found in cl 6.4 or the Map.

84. Accordingly, on that basis also the applicant submits that the result is that cl 4.6(a) of the SEPP is not engaged and therefore it follows that the SEPP applies to the land.

Consideration / Findings – Contention 1

85. I accept the applicant’s primary submission and find that the identification function required by the chapeau to Sch 1 is performed by the Terrestrial Biodiversity Map which identifies the land in this case as “Biodiversity”. There is no need to resort to dictionary definitions. The word “biodiversity” is not a “like description” or similar verbal description for “conservation” or “environmental protection” because when the meaning is considered in context “biodiversity” is an attribute of land. In this context, “biodiversity” has nothing to do with “environment protection” or “conservation”.

86. Therefore, I find that the description of the land “biodiversity” on the Map under cl 6.3(2) does not satisfy the categories of the SEPP and the result is that the cl 4(6)(a) is not engaged and the SEPP applies to the land. For the reasons submitted by the applicant in its primary submission as summarised I accept that the identification of the land by the Terrestrial Biodiversity Map does nothing more than identify that part of the land, in this case, has “biodiversity” as an attribute.

87. I do not accept on a reading of the text contextually that the objectives in cl 6.3(1) perform an identification function for the purposes of Sch 1 of the SEPP. Rather, by operation of cl 6.3(3)(a), the objectives identify principles which relate to “any development on the land”, and the provision requires the consent authority to be satisfied before the grant of consent that the development is consistent with the objectives of the clause (Pepperwood at [41]). The objectives in the context of this provision and the Act cannot be described as an identifying description of the land. And, while cases such as Punnett and Pepperwood support a textual approach to determining whether land can be categorised by reference to a “like description” of land as itemised in Sch 1 of the SEPP, the facts in this case can be distinguished, the issues are different and the focus of the examination is not on zone objectives.

88. As stated, the objectives in cl 6.3 are plainly not zone objectives but objectives which relate to the future development on the land. They are directly called up by cl 6.3(4)(a) but only when assessing a development application for the land and not for the purpose of identifying the land as identified already in the Map referred to in cl 6.3(2). They do not perform an identification function for the land.

89. I also agree that the Council’s analysis has not had regard to the structure of cl 6.3. The identification function required by the chapeau to the Sch 1 is complete at cl 6.3(2) the balance of cl 6.3 is not engaged. For the purposes of Sch 1 of the SEPP, the relevant description identifying the land is done by the Map. The Terrestrial Biodiversity Map does not contain any “like descriptions” for “conservation” or “environmental protection”. The Map is part of the KLEP but the task of identification required by the chapeau of Sch 1 to the SEPP needs to focus through the lens of the instrument. The Map has no function other than to serve the purpose of the instrument.

90. In the alternative, if that approach is found to be incorrect I accept the applicant’s analysis over that presented by the Council. In Whittaker, the Court had to determine whether the description “geotechnical hazard” as used in the Pittwater Local Environmental Plan 2014 is a “like description” for the expression “natural hazard’ as used in Sch 1, item (i) of the SEPP. The Court found on the facts that the expression was not a “like description”.

91. Following the principles relevant to the construction of an environmental planning instrument (“EPI”) as set out at [28] of Whittaker, I have decided, on the facts of this case, that the expression “biodiversity” is not a “like description” in the sense of a similar description as “environment protection” or “conservation” for the reasons outlined by the applicant as summarised earlier. None of the objectives to cl 6.3 use the expression “environment protection” and it is plain that the expression cannot be split: Druitts. That is, as the applicant submits, you cannot discard the word “environment” and use only the word “protection” to found an argument of like description. To do so would be to add the word “protect” to Sch 1 as a separate category.

92. Furthermore, when you consider the meaning of the word “environment” as defined in cl 1.4(1) which encompasses all aspects of surroundings of humans it is not confined to the natural environment and therefore cannot be a “like description” for “biodiversity” – which, in this context, only concerns the natural environment. When read in context and the purpose in mind, Sch 1 to the SEPP includes the separate expression “coastal protection”; and therefore, if “environment protection” was construed as protecting all aspects of the environment, then it would necessarily cover the separate expression “coastal protection” and this separate category would have no work to do.

93. Accordingly, it is my considered opinion that the text, in context and with the purpose in mind, means that the description “environment protection” refers to a much higher level of protection than just “biodiversity”. In the circumstances, it cannot be a “like description” even when affording a wide meaning to that expression as being something more than the “same” or “identical” but encompass[ing] the concept of similarity: Whittaker at [43] citing Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 at 71 B per Holland J.

94. With respect to “conservation” in its written submissions, the Council expresses some reservation as to whether this word is a “like description” (CWS at [91]) and I appreciate why. Nowhere in the objectives in cl 6.3 or the Map is the word “conservation” found. Accordingly, I do not accept the word “conservation” to be a “like description” for “biodiversity” for the purposes of Sch 1 of the SEPP for the reasons articulated by the applicant in its alternate submissions.

95. Therefore, the answer to Contention 1 is that the SEPP applies to the land. The text relied upon in cl 6.3 or the wording on the Map does operate to identify the land and that, in my opinion, is the end of the inquiry. Alternatively, I do not find that the word “biodiversity” is a “like description” of the words found in Sch 1 (a) to (m) in particular the words relied upon by the Council (d) “environment protection” and (b) “conservation”.

Clause 26 of the SEPP – Contention 2

The Council’s position

96. The second contention agitated by the Council was made an issue in the proceedings following an interlocutory hearing on 27 August 2018: Australian Nursing Home Foundation Limited v Ku-Ring-Gai Council [2018] NSWLEC 131. The applicant had applied to have the question raised by Contention 2 separated out from the principle hearing but Pepper J declined to do so and, instead reformulated the question for determination in this hearing, namely:

“Whether, properly construed, cl 26 of the SEPP, when read with cl 15 of the SEPP, is able to be varied by the provisions of the LEP including cl 4.6.”

97. The relevant provisions are set out below:

98. The aims of the SEPP are set out in cl 2(1). How those aims are to be achieved is set out in cl 2(2) of the SEPP.

2 Aims of Policy

(1) This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

(2) These aims will be achieved by:

(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

99. Clause 5 provides:

5 Relationship to other environmental planning instruments

(1) This Policy repeals State Environmental Planning Policy No 5—Housing for Older People or People with a Disability.

(2) Despite anything to the contrary in this Policy:

(a) a consent authority may not grant consent to a development application made pursuant to Chapter 3 in relation to the land referred to in clause 4 (9) if the proposed development does not comply with the requirements of clause 65 (5) of Sutherland Shire Local Environmental Plan 2000 relating to development for the purposes of seniors housing, and

(b) the provisions of clause 65 (5) of Sutherland Shire Local Environmental Plan 2000 relating to development for the purposes of seniors housing prevail over the provisions of this Policy to the extent of any inconsistency.

Note. Clause 7 (2) (a) of Sutherland Shire Local Environmental Plan 2006 continues the application of Sutherland Shire Local Environmental Plan 2000 to the land referred to in clause 4 (9).

Clause 65 (5) of Sutherland Shire Local Environmental Plan 2000 (when read with clause 4 in Part 1 of Schedule 8 to that Plan):

(a) applies the development standards in Parts 4 and 7 of Chapter 3 of this Policy to development for the purposes of seniors housing on the land referred to in clause 4 (9), and

(b) provides for those development standards to prevail to the extent of any inconsistency with development standards set out in Part 1 of Schedule 8 to the Plan for such development on that land.

(3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

(4) This Policy does not affect a provision in another environmental planning instrument that relates to the demolition of a heritage item.

100. Chapter 3 of the SEPP contains all of the clauses prescribing development standards. The objective of that Chapter is defined in cl 14 as follows:

14 Objective of Chapter

The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.

101. Clause 15 of the SEPP falls within Chapter 3. It is a key clause, because it describes the function of Chapter 3 of the SEPP as follows:

15 What Chapter does

This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:

(a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and

(b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.

102. Clause 16 of SEPP works alongside and in conjunction with cl 15. Clause 16 provides:

16 Development consent required

Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

103. Relevantly, cl 26 of the SEPP provides 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.

104. The Council’s position is set out in its written submissions dated 23 October 2018 which were also addressed orally. Shortly stated, the Council contends that cl 15 of the SEPP is the clause which sets aside the prohibition on the carrying out of a seniors living development in the R2 zone. Although, by setting aside the prohibition under the KLEP, the Council submits cl 15 is conditional upon the development strictly complying with the requirements of the SEPP including cl 26. The Council argues that neither cl 4.6 of the KLEP or SEPP 1 is available to vary cl 26 because the clause operates as a prohibition. And, if cl 26 was varied the development would not be in accordance with this SEPP as required by cl 15. To conclude otherwise, is to fail to give effect to cll 2(2)(a) and 16 of the SEPP and ignore the prohibition under the KLEP. In these circumstances, the prohibition by operation of cl 2.3 in conjunction with the land use table under the KLEP is not displaced (CWS at 16 at [65]).

105. The Council submits that this approach does not overlook the express terms of cl 4.6(2) of the KLEP “development consent may subject to this clause be granted for development even though the development would contravene a development standard by this or any other environmental instrument”. However in recognising that cl 4.6 has a legitimate role to play in permitting variation of a development standard where the development is permissible, it does not apply where the development is prohibited. As cl 26 is properly characterised as a prohibition and the development does not comply with the prohibition, it is prohibited.

106. At [5]-[6] of the CWS the Council asks me to focus on whether the type of development under consideration is permissible with consent under the provisions of Chapter 3 of the SEPP despite being prohibited under the KLEP. Applying basic principles of statutory construction, it submits that cl 26 of the SEPP sets out development criteria or standards in mandatory terms, to the effect that the consent authority must not grant consent under the SEPP if the development does not comply with the standard or criterion.

107. According to the Council the reason why cl 26 of the SEPP operates as a prohibition rather than a development standards is because it satisfies the test of having a zoning function in circumstances where the proposed development is prohibited under the KLEP. The clause sets out site related requirements containing provisions relating specifically to land expressed in mandatory terms. That is, it defines a characteristic of the land without which the development is prohibited. It is part of the definition of permissible development and is not an identified development standard that can be varied under cl 4.6 of the KLEP. On that basis, the Council submits that the discourse in relation to what constitutes a development standard does not assist the resolution of the point of construction it raises, namely, whether the development of the type under consideration is permissible with consent under the provisions of Chapter 3 of the SEPP, despite being prohibited by the KLEP (CWS 3 at [5]).

108. In the alternative, if one engages with the approaches of the Court of Appeal to determine whether cl 26 is a prohibition or development standard, the zoning function (essential element approach) is favoured in identifying whether a particular provision is a development standard; Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 (“Agostino”) per Tobias at [43]-[52] with whom Giles JA agrees) (CSW 3 at [7]). In reaching that conclusion, the Council’s written submissions start with the definition of a development standard in s 1.4 of the EPA Act and then work through the main authorities which dealt with the meaning of development standard including: Blue Mountains City Council v Laurence Browning (2006) 150 LGERA 130; [2006] NSWCA 331 (“Laurence Browning”); North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 at 232-233 per Mahoney JA; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 (“Poynting”) – before returning to an analysis of the provisions of the SEPP.

109. In that regard, the Council submits that cl 2(1) sets out the aims and cl 2(2) identifies how the aims are achieved. Chapter 3 of the SEPP contains all of the clauses prescribing development standards with the objective of the chapter identified in cl 14.

110. Clause 15 is then highlighted as it falls within Chapter 3 and is said to be a key clause because it describes the function of Chapter 3.

111. Relying on the accepted rules of statutory construction as already identified for the purposes of Contention 1, the Council then construes the clause’s text, context and purpose with emphasis on the word “if” in cl 1.

112. The Council submits that in circumstances where the development for the purpose of seniors housing is prohibited from being carried out under cl 2.3 of the KLEP, the effect of cl 15 of the SEPP is that such development will be permissible under Chapter 3 of the SEPP despite the development being prohibited under the KLEP, but only “if” the development is carried out in accordance with the SEPP.

113. According to the Council, the plain language of cl 15 must be accorded due weight in the task of construction as the text in the statute is the surest guide to intent: Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47].

114. Applying the ordinary meaning to the word “if” when used in cl 15, the Council submits that it introduces a condition which must be satisfied in order for development to be permissible under Chapter 3 of the SEPP. There is a precondition in cl 15 (CWS 11 at [34]-[35]). It is further submitted that the context of cl 15 and the purpose of Chapter 3 and the instrument as a whole support the view the Council takes about how cl 15 should be interpreted.

115. Clause 15 is said to be a provision which describes the development that Chapter 3 allows. And, by specifying the criteria prescribed in mandatory terms in the SEPP, it still remains the position that Chapter 3 creates opportunities for the development of housing for seniors and persons with disabilities and thus the objective set out by cl 14 may be achieved. Clause 15 defines the opportunities that Chapter 3 creates and it defines the opportunities by limitation (CWS at 11 at [38]). This construction, it is submitted, accords with what cl 2 of the SEPP says about the aims of the SEPP and how the aims are intended to be achieved. That is, the aims in cl 2(1) of the SEPP are to strike a balance to encourage the provision of housing (including residential care facilities). “…On the one hand to seek to avoid bad planning outcomes, including poorly designed development and development that is not unsuitably incongruous in its context or locality” (CWS at 12 [41]).

116. Additionally, the Council submits “...of particular significance in considering the balance that the SEPP seeks to achieve, and in construing its effect, is cl 2(2)(a) of the SEPP”. The clause provides:

2 Aims of Policy

(2) These aims will be achieved by:

(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy…

117. This clause, according to the Council, in terms “fortifies the proposition that flows from the language of clause 15 that a prohibition under an LEP against the carrying out of proposed seniors housing development will be set aside by the provisions of Chapter 3 of the SEPP only if the development meets the development criteria and standards specified in this policy” (CWS 12 at [44]).

118. Additionally, the language of cl 2(2)(a) of the SEPP supports the proposition that the development will not be carried out “in accordance with this Policy” within the meaning of cl 15 if the development does not meet the development criteria and standards specified in the SEPP. Furthermore, the applicant believes that cl 16 of the SEPP operates harmoniously with cl 15. By stating that development “allowed by this Chapter” may be carried out with the consent of the Council, cl 16 is naturally to be read as referring back to cl 15 in identifying what is allowed under Chapter 3 (CWS 12 at [45]).

119. The applicant emphasises that the pre-condition to permissibility set out in cl 15 is expressed in terms “if the development is carried out in accordance with this Policy”. If the proposed development does not accord with a development standard expressed in mandatory terms in the SEPP, the development cannot be “carried out in accordance with this Policy” within the meaning cl 15. The Council contends that the SEPP is beneficial and facultative but that does not give “carte blanche” permission to override a prohibition in an environmental planning instrument.

120. Whilst acknowledging disunity in the approach of the Court of Appeal in identifying whether a particular provision is a development standard, the Council prefers the reasoning as I said in Agostino. Clause 26 is properly characterised as a prohibition because it satisfies the test of a zoning function or essential element.

121. Chapter 3 operates as an exception to the general prohibition on housing for seniors in the KLEP: Agostino at [44]. Clause 26 is one particular zoning criteria in Part 2 of Chapter 3 which is an essential consideration in determining whether the development is permissible. To support that proposition, the Council refers me to Agostino at [45] and [46].

122. Chapter 3 is divided into numerous parts and the Council submits as notable that Parts 4 and 7 refer expressly to “development standards”.

123. Part 2 is entitled “Site-related requirements” and contains provisions relating to land, expressed in mandatory terms. These include location and access to facilities (cl 26), bush fire prone land (cl 27) water and sewer (cl 28) – all matters which the Council argues are essential considerations for the seniors housing development having regard to the objectives of the SEPP.

124. Clause 26 sets a prescribed distance for the location of and access to facilities such as shops, banks etc. This is expressed in mandatory terms and may be regarded as an essential condition.

125. The Council submits that the essential quality of cl 26 is demonstrated by its nexus with the objective in cl 2(1)(b) “to make efficient use of existing infrastructure and services”. In accordance with Agostino, it is only after the development is identified as permissible that the development standards controlling how that identified development is carried out becomes relevant.

126. Relevantly, at the point at which one addresses cl 26, the development is not permissible. Only if compliance with the mandatory terms of cll 26, 27 and 28 may it overcome the prohibition in the KLEP. Then the expressly described development standards come into play.

127. The Council submits that I should not follow the decision of Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 (“Principal Healthcare”) for two reasons:

1. The proposed development in those proceedings was permissible in the zone under the relevant LEP. Therefore, the provision of Chapter 3 did not need to be considered against the underlying prohibition in the LEP in accordance with the reasoning as outlined in this case.

2. The two step process adopted by Robson J has been rejected by the Court of Appeal as being conductive to legal error (Laurence Browning per Basten JA at [101]-[103] and per Ipp JA at [15]–[20]).

128. Furthermore, the Court would not follow Moore J in Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 (“Pathways”) because:

1. The decision deals with a markedly different provision in cl 40(4) of the SEPP in Part 4 of the instrument which is expressly “development standard”.

2. Additionally, the Court did not determine whether or not the provision was a development standard or prohibition by reference to the decisions of the Court of Appeal referred to above and appears not to have taken those decisions into account (Footnote 15 CWS at [64]).

129. In those circumstances, cl 4.6 cannot make the development permissible with consent by allowing a development standard with which the development does not comply to be varied.

The applicant’s primary position

130. The applicant contends that the effect of the Council’s construction of cl 15 is that no development could be carried out pursuant to the SEPP unless the proposal strictly complied with every single provision of the SEPP. According to the applicant, the real issue for determination is whether there is any inconsistency between cl 15 of the SEPP and cl 4.6 of the KLEP. If there is no inconsistency, then cl 4.6 permits the grant of consent notwithstanding the contravention of cl 26. (Although, it identifies that the Council does not deal with this issue of inconsistency in its submissions). Despite that the applicant’s primary position is that I do not need to delve into the contest as to whether cl 26 of the SEPP operates as a prohibition or development standard if I accept that the requirements of cl 26(2) of the SEPP, that services and facilities are “located at a distance of not more than 400m from the site” means that they could be located on the site.

131. However, if I do not accept that proposition, then it submits that any non-compliance with the standard in cl 26 of the SEPP can be varied by operation of cl 4.6 of the KLEP having regard to the reasoning of the Court in the decisions of Ku-ring-gai Council v Pathways Property GroupPty Ltd [2018] NSWLEC 73; Georgakis v North Sydney Council (2004) 140 LGERA 379 (“Georgakis”) at [42]-[43] particularly; followed in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Robson J at [69]-[75].

132. I will deal with the applicant’s primary position first.

Does the development comply with cl 26 of the SEPP?

133. The applicant has addressed this matter of compliance with the terms of cl 26 in separate written submissions dated 2 November 2018. The issue as to whether access to requisite services and facilities within appropriate limits is also addressed by the parties’ planners, Mr Grech and Mr Goodwill in their joint report (Exhibit 5) and later orally in Court. This was the only issue between the planning experts; in all other respects, they were in complete agreement.

134. The applicant submits that the text and structure of cl 26 is important. Clause 26(1) identifies three categories of facilities and services that the residents of the proposed development need to have access. And, as the consent authority, the Court needs to be satisfied of that fact. The clause also mandates that the access complies with subcl (2).

135. Clause 26(2) then identifies three possible means of access to those facilities (Noting that the third way is not relevant in this case as the site is located within the Greater Sydney area). Clause 26(2)(a) requires that the facilities and services be located at a distance of not more than 400m from the site by an accessible pathway of a particular gradient.

136. Clause 26(2)(b) provides an alternative by use of the word "or" that the site be located at a distance of not more that within 400m of a public transport service that will take those residents to a place that is within 400m from the facilities.

137. The applicant's primary position is that the requisite facilities are provided on site by the development. This satisfies cl 26 because the requisite facilities being provided on the site are not more than 400m from the site and are accessible.

138. The requisite facilities and services are outlined in Exhibit C and (summarised again in Exhibit K the cl 4.6 written request) and referred to in the joint planning report (Exhibit 5). Mr Grech, the applicant's planner, sets out his view about the requisite facilities at paragraph [28] and the Council's planner, Mr Goodwill, sets out his view at paragraph [29].

192. I have considered the matters raised by subcl (5)(a), (b) and (c) including the public benefit of maintaining the standard and have decided that in the circumstances of this case for the reasons outlined above that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the specific circumstances of this case.

193. For those reasons the cl 4.6 written request to contravene cl 26 of the SEPP is approved.

HERITAGE – CONTENTION 3

198. The Council contends that the development has unacceptable adverse impacts on the local Heritage Item “Birralee” (25 Bushlands Avenue) in breach of cll 32 and 33 of the SEPP and on that basis, the application is prohibited.

199. In order to address the evidence, it is necessary to set out the relevant statutory framework.

200. Clause 32 of SEPP HS provides:

32 Design of residential development

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

201. Clause 33 of SEPP HS provides:

33 Neighbourhood amenity and streetscape

The proposed development should:

(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and

(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and

(ii) using building form and siting that relates to the site’s land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and

(f) retain, wherever reasonable, major existing trees, and

(g) be designed so that no building is constructed in a riparian zone.

202. On a reading of the text in context, cl 33 is qualified by cl 32.

203. Clause 33 is contained in Division 2. The precondition to the grant of consent is that the Court must not grant consent unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the design principle in cl 33(b).

204. Clause 32 does not require strict compliance or consistency with cl 33 but rather it must be satisfied that the development demonstrates that adequate regard has been given to the principle.

205. The SEPP defines “heritage item” and “heritage conservation area” as:

heritage item means a building , work ,tree , archaeological site , Aboriginal object or place (which may or may not be situated on or within land that is a heritage conservation area) described as a heritage item in another environmental planning instrument.

heritage conservation area means:

(a) land identified in another environmental planning instrument as a heritage conservation area and includes buildings, works trees, archaeological sites, Aboriginal objects or places situate on or within that land, or

(b) a place of architectural significance identified in another environmental planning instrument , or

(c) a place of Aboriginal heritage significance identified in another environmental planning instrument

206. The KLEP dictionary defines “heritage item” and “heritage conservation area” as:

heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5,

heritage conservation area means an area of land of heritage significance:

(a) shown on the Heritage Map as a heritage conservation area, and

(b) the location and nature of which is described in Schedule 5,

and includes any heritage items situated on or within that area.

207. Part 1 of Sch 5 of the KLEP identifies the relevant heritage item as Birralee, dwelling house located at 25 Bushlands Avenue, Gordon (Lot 3 DP 578395) and Part 2 of the Heritage Conservation Area as St Johns Avenue Conservation Area (“St Johns Avenue CA”) shown in red hatching labelled C16A.

208. The parties have provided the Court with comprehensive written and oral evidence about this heritage contention including a joint report (Exhibit 3) and a supplementary joint report Exhibit 10 attaching certain agreed sketches. My understanding of the final position of the heritage experts following the amendments in Exhibit L is set out below.

209. Despite the agreed amendments to the design the Council’s heritage expert Ms Hay’s remained concerned about the intrusion of the development into the garden setting/ curtilage of the heritage dwelling Birralee. She believes the built form surrounds and dominates the item by removing view corridors on either side of the dwelling house. She is also concerned about the driveway access to the basement car park and elevated front pathway.

210. Mr McDonald has a different expert opinion. He does not believe that the development surrounds Birralee but rather has been carefully designed to avoid competing with Birralee. In his assessment, the garden setting is maintained when viewed from the key vista from the opposite side of the street. Noting that Ms Hay and Ms Higgins agree that the key vista is the view from the streetscape (Exhibit 5 p7 and p27 and recommendations folio 500, Vol 2, Exhibit 2).

211. By way of background, I note that the Council’s resolution to place an interim heritage order on Birralee happened after the applicant had held a pre-DA meeting with the Council. The listing was based on the heritage assessment of Ms Higgins (Tab 95 Exhibit 2). At folio 500 of her report, Ms Higgins refers to the “garden setting” and recommended as follows:

“ A garden setting should be retained at the front and side of the house. The garden should include extensive lawn areas, and garden beds. The large fir tree should be retained as well as attractive mature shrubs whee these contribute to the setting of the house. Consideration should be given to reinstating a curved path and font garden bed in the original location”.

212. According to the evidence, her recommended listing of the property as a heritage item came to fruition.

213. During her oral evidence, Ms Hay conceded that the development, as amended complied with the recommendations of the heritage report which was the basis of the listing except with respect to the elevated front path. And, as a result of joint conferencing together with the landscape experts, Ms Hay also accepted that the final landscaping proposal for the front and sides of the development, including the Heritage Item garden were acceptable. Although she remained concerned about the removal of a significant tree 23 (T94:25) and the elevated pathway at the frontage. Whereas, Mr McDonald accepted the elevated path was appropriate behind landscape screening – and the other changes including the modified driveway were acceptable.

214. Shortly stated, his evidence was that if the western wing of the driveway is located at the alignment of the existing house on that lot with landscaping and the garage door lowered (as now proposed in Exhibit L), then the western wing will appear as a two-storey building with basement garage which is a permissible form of development under the current controls (subject to a merit assessment). In light of this, the applicant submited on this evidence of Mr McDonald that the Court would not refuse this application, as modified on the basis of the driveway design.

215. Irrespective of these agreed amendments to the design to reduce its bulk and scale across the site – and the retention of more trees and new landscaping, Ms Hay did not change her ultimate view that the development dominates the Heritage Item when viewed from the street frontage. While she accepted that aligning the central wing with the garage is an improvement (T86: 30) she said that the overall size - bulk and scale across the site, is inconsistent with and not harmonious with the surrounding streetscape and subdivision being - domestic buildings forward of the lots and open space behind. Her oral evidence was that the St Johns Avenue CA beyond the site clearly demonstrates the inappropriateness of this development in this location (T99:35). She also expressed particular concern for the retention of Tree 23 as she believes that tree contributes to the setting of the item – (noting that this tree is about 55m behind the item).

216. Mr McDonald disagreed and said in terms of the pattern of urban development, particularly when viewed from the street level and the public domain. In his assessment the western wing is consistent with the existing houses in terms of width and setback along the street. And, as the development sits lower than Birralee, as the land falls down at this location, in his expert assessment the built form reflects the subdivision pattern that is number 27.

217. Furthermore, if the central wing is moved back as proposed, then, in his opinion, this element will have very little visual presence – particularly, with the retention of a lot of the vegetation that already exists along the driveways. And, the eastern wing, in his assessment, will be sufficiently set back so as not to be read strongly in the streetscape to interrupt the development pattern in the street. The fact that the development maintains the eastern garden and the front garden which is identified in the listing is, in Mr McDonald’s opinion, important (T89:1-15). In contrast to Ms Hay’s evidence, Mr McDonald believes that the heritage dwelling will read as the dominant built element on this site. In accepting that the ridge line of the eastern wing is higher and the main part is higher and the front part lower, he believes when viewed from eye level at the street you will see the cottage first with the buildings behind. He explained to the Court that the façades had been broken up intentionally to avoid an institutional appearance. In the eastern wing, there is to be glazing all the way around the lounge rooms to make it more domestic and light and the same treatment is incorporated in the western wing design (T90:5-14)

218. In terms of view corridors at the site today Mr McDonald said that it is very difficult to see much beyond the back of Birralee. And, when you look down the existing driveway to Birralee, the view beyond is blocked by the garage and trees. When you look to the east side of Birralee again the view is blocked by trees and that will remain the case (T90:15).

219. In his expert opinion, after construction of development the side setbacks will continue to appear as vegetated corridors and the eastern wing will continue to be screened by the Fir tree and proposed new plantings. In short, “the tongue” of the development (as it was referred to in the evidence) in close proximity to the Heritage Item at its south east corner for a very limited area will appear recessive because of its materials and its setback from the street and 16m behind the front façade of the item.

220. When looking from a historical significance (Part A, Assessment of significant p499 of the bundle), Ms Hay said that the proposed adaptive reuse of the site was not consistent with the heritage values of the Item and property –namely; a large site with a large healthy garden and tennis court around a suburban bungalow set in expansive lawns. In her opinion, the depth of the block should be retained as part of the significance of the place (T90:40:91:2) – although she conceded that the listing does not refer to keeping the tennis court and the rear planting depth. For those reasons she does not believe that the garden setting is maintained on the sides, despite being satisfied with the landscaping between Birralee and the street (T93:40). Ms Hay also understood when giving her evidence that the Planning Panel stipulated that a setback of 12m for the eastern pavilion was appropriate and that this had been reflected in the design and that the amended vegetation plan revegetates the whole rear corridor (T96:12) however, this did not change her expert opinion.

221. Accepting that the heritage listing applies to the entire Lot 33 DP 578395,and that the garden and house form a composition, Mr McDonald said in oral evidence that the visually prominent trees are primarily at the front, being the Himalayan Cedar against the bushland backdrop. He believes that the proposed development maintains the garden setting. And, while he accepted that the distance between the central wing roof overhang to the eve of the laundry of the Heritage Item is about 1m, this did not concern him because you would expect to see garages in that general area. If it were on the eastern side of the site, he would have been more concerned (T104:42). However, in terms of visibility, the opportunity to view the central wing (set back) about 1m from the Heritage Item at that point only and 16m back from the front of the heritage building will not detract from the significance of the Birralee as people get to see it as they go up the path (Exhibit G). Ms Hay disagreed and in response said believes this element will have a large impact on understanding and appreciating the Item (T15:7).

222. Furthermore, Mr McDonald is satisfied that the Heritage Item will be perfectly capable of being perceived on three sides: where the three sides are intact; where the original buildings are intact except for some windows in the upper gable, where the attic rooms have been added (T106:30). It is not surrounded although there are buildings to the north of the item but on the east and the west, it is not surrounded. The separation of the built form is perfectly adequate to give Birralee room to be interpreted in an enhanced garden setting on the western side and important vistas from the street are angled so that one sees east and west sides of the house as well as the front. While the viewing of the rear garden is compromised by the development, it is not the important garden setting. There is no formal garden there (T107:8). In his expert opinion, the development will sensitively harmonise in terms of the matters raised by cl 33(a) – (f). The increased built form on the site does not compete with Birralee as a fine example of late Federation period architecture.

Consideration / Findings – Contention 3

223. Clause 32 of the SEPP states that I cannot grant consent to the proposed development unless I am satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2 which include the matters in cl 33, with reference to both the Heritage Item and the conservation area.

224. In relation to the conservation area which I observed at the view, the applicant submits that this bushland is not a matter which has received any real attention in this appeal. The subject building in particular and indeed the landscaping is all but invisible from the bushland conservation area. And, to the extent that it may be visible from one or two dwellings in the street behind there is a separation of not less than 12m from the site to the boundary. These submissions accord with my observation of the area at the commencement of the hearing.

225. Moreover, the evidence establishes that those dwellings are about 40 to 50m back from the boundary and there is substantial vegetation which separates them. Accordingly, this area will not be adversely impacted by this development or offend the Design Principles set out in Division 2 and cl 33 of the SEPP that I have had regard to as required by cl 32.

226. The Council’s SOFC also refers to cl 5.10 of the KLEP, being engaged because the purpose is to erect development in the vicinity of a heritage item. Therefore, the Court must have regard to subcl (4) the “effect of the …on heritage significance on the item”.

5.10 Heritage conservation

Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Ku-ring-gai,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(2) Requirement for consent

Development consent is required for any of the following:

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(3) When consent not required

However, development consent under this clause is not required if:

(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development:

(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) the development is in a cemetery or burial ground and the proposed development:

(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d) the development is exempt development.

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6) Heritage conservation management plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

(7) Archaeological sites

The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies):

(a) notify the Heritage Council of its intention to grant consent, and

(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(8) Aboriginal places of heritage significance

The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance:

(a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and

(b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent.

(9) Demolition of nominated State heritage items

The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item:

(a) notify the Heritage Council about the application, and

(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

(10) Conservation incentives

The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

227. I have considered both the heritage provisions in the SEPP and the KLEP. I have considered the heritage conservation management documents filed with the application. Noting that the Council has confirmed that it does not agitate any matter in relation to cl 5.10 of the KLEP.

228. In my opinion, Mr McDonald’s evidence, as summarised, is consistent with the recommendations of Ms Higgins who undertook the heritage assessment that formed the listing and the terms of the listing. The listing does not recognise the tennis court as part of the garden - albeit a condition has been included for the archival recording of the Heritage Item and the garden in any event.

229. His views about the acceptability of the impacts of the development behind the Item which will be glimpsed on the western and eastern sides of the item from the street accords with my understanding of the evidence about the impacts generated by the amended plans and my inspection of the site from the agreed key vista opposite during the Court view. From that main vantage point, I agree with Mr McDonald that in time there will be no more than glimpses of the development because of the proposed landscaping and vegetative screening Importantly, I also agree with Mr McDonald that the side setback as modified will continue to appear as vegetated corridors thereby maintaining reasonable neighbourhood amenity and appropriate residential character: cl 33(c)(i) and (ii). The eastern wings will continue to be screened by the Fir tree and the proposed new plantings. The tongue of the building is setback and will appear as a light weight glazed structure. And while in close proximity to the Heritage Item at its south east corner to the eave for a very limited area as Mr McDonald states this will appear recessive because of its material and the fact that it will be setback from the street some 16m behind the front façade.

230. In my assessment of all the evidence, I prefer Mr McDonald’s assessment that the development will not dominate the Heritage Item as Ms Hay believes. I have reached this conclusion because I accept that the proposed development has been broken up and for that reason will not appear overbearing or dominating of the Heritage Item or the streetscape. By retaining the Heritage Item as designed, I accept Mr McDonald’s expert opinion that the development will be set back in sympathy with the existing building line of the street. The evidence is that the height of the development and setback will be of a compatible scale to the adjacent development.

231. With respect to the impact on the St Johns Avenue CA which adjoins the rear boundary of the site, that I observed at the view, I accept that it will be regenerated forest with the buildings set back 12m extending 55m from the boundary. On that basis, I agree with the applicant that the visible interface to the St Johns Avenue CA will remain as a forest but with more dense plantings maintained until fully established

232. After careful consideration of the written reports and plans and the oral evidence, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design principles in Division 2 (cl 33) referred to in cl 32 for the reasons outlined by Mr McDonald. Through adaptive reuse of the item as part of the residential facility and the sensitive location and redesign of the new buildings in order to maintain the key vista of the item to protect and enhance the front and side gardens the development has sought to retain and complement and sensitively harmonise with the Heritage Item: cl 33(b). The protection and enhancement of the rear forest corridor so as to maintain and strengthen its vegetative interface with the adjoining HCA demonstrates how the development has sought to recognise the desirable elements of the locations current character and contribute to the quality and identity of the area: cl 33(a).

233. I am also satisfied that adequate regard has been had to cl 33,again for the reasons expressed by Mr McDonald as summarised to the design of the proposed development in an effort to retain, complement and be sensitively harmonious with the St Johns Avenue CA area adjoining the site and the Heritage Item “Birralee” as identified in the KLEP.

234. In my opinion, a great effort has been made to redesign to ensure that the development will appropriately accommodate the neighbourhood amenity and streetscape in accordance with the SEPP provisions listed in cl 33(a) – (f) and cl 5.10 of the KLEP.

235. Ms Hay’s concerns with the development particularly in relation to view corridors on either side of the dwelling house do not reflect the amended design which I am now asked to approve. The impact of the loss of the tennis court and loss of the trees in the forest at the rear are not the focus of the heritage listing or of concern now according to the evidence of the ecologists, as agreed. The forest will be regenerated and managed and this will result in an improvement in its condition. And, while I acknowledge her heritage expertise and view that the development dominates the Heritage Item by its form, scale and proximity to the item and the loss of Tree 23 for example, I am satisfied that these concerns have been satisfactorily addressed by the extensive amendments and recommendations of the experts now incorporated in the amended application and in the plans in Exhibit L. As discussed by Mr McDonald in the joint report Exhibit 3, the proposed development has been designed to read as secondary to the Federation period residence “Birralee”. It has been designed in scale, form, materials and proportion to compliment the original character of Birralee without detracting from the finer qualities that are evident in the Federation period residence. Having regard to the objectives in cl 5.10 of the KLEP, in particular objective (b), a conservation management plan has been prepared and respects the project whilst conserving its heritage significance and also respects the St Johns Avenue CA which abuts to the west. There are no visual or physical impacts that would adversely affect the significance of the St Johns Avenue CA at the rear of the site parallel with the Bushland Restoration Zone.

236. The heritage contention 3 is not a basis on which to refuse consent to this amended proposal as in my opinion adequate regard has been had to cll 32 and 33 of the SEPP and cl 5.10 of the KLEP for the reasons stated.

Acoustics

237. I have read the acoustic reports of Mr Cooper which address possible sleep disturbance from vehicles leaving the garage at night. This was a concern for the residents who addressed the Court and the Panel. Mr Cooper has recommended a condition to address this matter by restricting the use to the driveway after 11pm at night to any vehicle other than emergency vehicles. The applicant has agreed to the imposition of such a condition and it should be imposed.

238. The parties have not agitated any other merit issues apart from the lay objectors’ concerns. Matters of traffic, acoustics, heritage and management of the STIF are dealt with satisfactorily in my assessment under s 4.15 of the EPA Act by the agreed conditions of consent (Exhibit E) and the amended plans (Exhibit L).

Conclusion

239. The objectors’ concerns in respect of unacceptable boundary setbacks, building bulk and scale, noise, traffic, light spillage, adverse ecological and heritage impacts are, in my assessment, satisfactorily dealt with by the proposed agreed conditions in Exhibit E, and the amended plans. I am mindful that the application that I am being asked to approve is very different to that originally lodged with the Council. Importantly, it now reflects the amendments suggested by the Panel (who described the original proposal in its supplementary report as having merit but rejected the design proposed at that time) and the further amendments suggested and agreed by the experts in this appeal. I have no doubt that the objectors’ fears and concerns expressed in respect of the development are genuine beliefs honestly held. However, on the evidence before me they are analogous to the fears and concerns dealt with in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 at [61]. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as probative evidence to found the outcomes sought. Fears must be able to be objectively tested and in this case, having had opportunity to test the evidence as required by s 4.15 of the EPA Act, I am of the opinion that such justified foundation and/or rational basis, is absent. For the above reasons I am satisfied that the development is permissible on the site and that the standard in cl 26 is complied with in this case.

240. Accordingly, the Court orders:

1. Leave is granted to the applicant to amend the development application and to rely upon amended plans in Exhibit L.

2. The appeal is upheld.

3. Development consent is granted for Development Application DA 0418/15 to demolish structures (except dwelling at 25 Bushlands Avenue) and construct a residential aged care facility, basement car parking and landscaping works under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at Lots 2, 3 & 4 DP 578395 known as 25, 25A and 27 Bushlands Avenue, Gordon in accordance with the amended plans in Exhibit L and subject to the agreed conditions in Exhibit E (now marked and annexed as “Annexure A”).

4. The exhibits are returned apart from Exhibits 1, 7, A, E, K and L.

……………………………….

S Dixon

Senior Commissioner of the Court

Annexure A

Amendments

09 May 2019 - Pursuant to UCPR rule 36.17, due to an administrative error, the Court has corrected the published Judgment which contained typographical errors at paragraphs: [29], [71], [95], [144]-[145], [148], [156], [190]-[191].

Decision last updated: 09 May 2019