Beacon Hill Retirement Pty Limited v Warringah Council - [2010] NSWLEC 1011

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Beacon Hill Retirement Pty Limited v Warringah Council [2010] NSWLEC 1011

PARTIES:
APPLICANT
Beacon Hill Retirement Pty Limited
RESPONDENT
Warringah Council

FILE NUMBER(S): 10322 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Seniors Living development; site suitability, strategic planning; visual impact; ecological impacts, public interest.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (HSPD)
Warringah Local Environmental Plan 2000
Draft WLEP 2000

CASES CITED: Gillespies v Warringah Council [2002] 124 LGERA
Retirement by Design v Warringah [2007] 153 LGERA 372
Mete v Warringah Council [2004] 133 LGERA 420

DATES OF HEARING: 19-20, 22 October 2009

DATE OF JUDGMENT:
19 January 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Galasso (SC)
SOLICITOR
Carroll & O'Dea Lawyers
RESPONDENT
Mr J Robson (SC)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 January 2010

10322 of 2009. Beacon Hill Retirement Pty Limited v Warringah Council
JUDGMENT

Background.

1 This appeal is against council’s deemed refusal of an integrated development application for the construction of a 66 – unit retirement village under the provisions of State Environmental Planning Policy (Housing for Seniors and a Disability) 2004 (SEPP – HSPD). The proposed development is to be located at 70A Willandra Road, Narraweena.

2 A number of contentions were raised, which are summarised as follows:

Suitability of the site in terms of strategic planning considerations and the scale of the proposed development, in terms the intensity of use and environmental impacts concerning the extent of modification of the natural landform.
Visual impacts,
Ecological impacts in terms of the effect on the threatened species of Rosenburg’s goanna (Heath monitor) and the Southern Brown Bandicoot (SBB).
Public interest matters.

The proposal

3 The proposed development comprises 66 self-contained dwellings, including 48 x 3 bedrooms and 18 x 2 bedrooms situated within a mix of single and 2-storey buildings. The dwellings are grouped in clusters, with each generally containing 5 units. It also includes a village centre containing administration, recreation, leisure and service facilities including swimming pool.

4 The design concept is for a ‘Balise’ community to provide a high quality development for seniors living. According to the SEE, the dwellings have been designed with regard to the site constraints resulting in a series of elongated buildings within the clusters generally following the north – south longitudinal contours. In order to achieve to required gradients, a series of cut/fill sections are proposed along the transverse east/west axis to form the desired building platforms and access provisions suitable for the senior’s development.

5 A consequence of optimising this form of 2-storey development is that considerable additional earthworks are required to provide the separate vehicular accesses to the upper level units from their western elevation, whilst the lower level units are separately accessed from their eastern elevation.

6 Access to the development is via a new road connection from Lady Penrhyn Drive at Supply Avenue, which then forms an internal perimeter road system providing access to the individual units. The grading on this road requires the construction of a stone retaining wall (RW) atop the existing stone embankment along the eastern boundary of the proposed works. This RW has a length of approximately 475m and ranges in height to 5m.

7 The development also includes the provision of other infrastructure, including the provision of walking trails and landscaping.

8 Due to the topographical and vegetative features of the site, some vegetation clearing is required in order to create adequate asset protection zones (APZ).

The site

9 The subject site comprises 5 parcels of land with a total area of 17.46ha. These lots are described as Lots 808, 809, 812, 813 and 817 in DP 75038. They are located on the eastern side of Lady Penrhyn Drive, opposite a residential precinct known as ‘Locality B8 – Red Hill’. The majority of housing in this precinct is of detached, 2-storey brick and tile construction.

10 To the east the site adjoins the rear boundaries of 4 lots, each with frontage to Willandra road. These lots are currently vacant and densely vegetated. The subject lot adjoins other lands to the north and north-east, which contain no buildings and are densely vegetated. An unmade Crown Road separates these lots from the site.

11 The site falls to the east and downward from Lady Penrhyn Drive. There is an upper plateaux (with approximate area of 8 ha) containing various, prominent rock features and also a “hanging swamp”. There is a rock embankment approximately 8m high that traverses the lot, effectively separating the lower, remaining vegetated/treed area of the lot.

Planning controls

12 The development is subject to the following raft of controls:

.1 State Environmental Planning Policy

13 The primary planning controls that are relevant in this matter are SEPP (HSPD) and the Warringah LEP 2000 (WLEP). The site is within the B2 Oxford Falls Valley Locality and it adjoins land in the Locality - 8 (Red Hill) that under the Warringah LEP is “reserved” primarily for residential purposes, permitting dwelling houses to be erected thereon. Accordingly, cl 15 of the SEPP allows the proposed form of development with consent, subject to merit assessment.

14 The SEPP is the prevailing control and contains a number of site related requirements in Part 2 and associated design requirements contained in Part 3. Clause 29 relevantly deals with site compatibility criteria considerations as follows:

29 (2) A consent authority, in determining a development application to which this clause applies, must take into consideration the criteria referred to in clause 25 (5) (b) (i), (iii) and (v).

15 The relevant provisions of clause 25 (5) (b) require an assessment of the compatibility of the proposed development with the surrounding land uses having regard to the following criteria:

(i) the natural environment (including known significant values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development…

(iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision…

(v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development.

16 The Division 2 – Design principles contains the following neighbourhood amenity and streetscape considerations:

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) …

(c) …

(d) …

(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) …

2 Warringah LEP 2000 (WLEP)

17 Associated controls are contained in the Warringah LEP 2000, under which the site is located within the B2 Oxford Falls Valley Locality. This WLEP designates housing for older people or people with a disability as a Category 2 land use, which is permitted with consent.

18 Cl 12(3)(b) of the WLEP states that prior to granting consent for development identified as Category 2, the consent authority must be satisfied that the development is consistent with the desired future character, which is described as follows:

Desired Future Character

The present character of the Oxford Falls Valley locality will remain unchanged except circumstances specifically expressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standard set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create saltation or pollution of Narrabeen Lagoon and its Catchment and will ensure that ecological values of natural watercourses are maintained

.3 Draft Warringah LEP 2009

19 This draft LEP is a translation of the existing provisions of WLEP 2000 and it proposes to zone the subject land E3 Environmental Management, whereby seniors housing would be prohibited. Whilst this draft LEP has received a s65 Certificate, there is no substantive evidence to indicate its imminent or certain gazettal.

20 Notwithstanding this, there is a savings clause that enables consideration of the subject application on the basis of the current controls. Accordingly, whilst the draft LEP would not be given determinative weight, its reference to the desired future character of this area can be taken into account.

21 Detailed evidence on behalf of council was given by:

22 Evidence for the applicant was given by:

Site suitability

23 Permissibility; This primary issue involves the consideration of a number of elements to assess the site suitability for the scale of the proposed development. The first matter concerns permissibility of the development under the SEPP provisions, which allows the form of development for ‘seniors living’ in areas not usually permitted under many LEPs.

24 This element requires careful consideration due to the specific references in the SEPP to the WLEP, whereby the prevailing controls in the SEPP do not apply to land located in identified localities. This situation arises in part because of the use of ‘placed based locality statements’ instead of conventional zoning in the WLEP.

25 However, as the land is located within the ‘B2 Oxford Falls Locality’ and adjoins the ‘B8 (Red Hill)’ urban area, the form of the proposed development is permissible with consent under the provisions of cl 15. Therefore it is appropriate to assess the merits of the proposal.

26 Apart from this, the development of housing for older people or people with a disability is classified as Category 2 under WLEP and is permitted in the Locality B2 – Oxford Falls Valley.

27 Strategic considerations; One of the primary concerns raised is whether the scale, bulk and built form of the proposed development should be approved, relative to its existing bushland context and desired future character (DFC). The court was informed that council has prepared a draft LEP 2009, which recognises the environmental sensitivity of the land and proposes zoning the land as an environmental management zone, whereby the proposal would be prohibited. The council submits that a high level of weight should be given to this as a basis for the refusal of the application.

28 In addition to this, the council evidence is that it is appropriate to take into account the government’s “urban strategy”, as expressed in the “Metropolitan Strategy”, “Draft Subregional Strategy” and the Planning and Assessment Commission’s (PAC) “Review of four sites within Oxford Falls Valley for Urban Development”.

29 Insofar as the subject application has not been assessed in accordance with the provisions of cl 25 of the SEPP, nevertheless the PAC’s review is of some interest because its terms were to assess the urban development capability of other nearby bushland, taking into account the sustainability criteria in the Metropolitan Strategy, the relationship with existing urban development, and the current and potential servicing and transport services.

30 The review noted that an application for a seniors living development had been lodged for the northern part of the Red Hill site. It also referred to the phenomenon of “nibbling”, as a significant mechanism by which cumulative impacts can occur over an extended period. The consequences of such nibbling could be the almost complete urbanisation of the remaining bushland in the Valley, unless some clear boundaries can be established on reasonably defined bases.

31 The PAC conclusions include:

32 This review confirms the environmental sensitivity of the subject land within its surrounding context and indicates to me that particular attention should be given to the assessment of the compatibility of the proposed development, relative to cl 25(5) and cl 29 of the SEPP and the desired future character considerations.

33 Scale of development; Clause 25 (5) (b) requires an assessment of the compatibility of the development with a number of criteria including the natural environment, access and the impact of bulk, scale and form on approved and future uses of the nearby land. For this assessment I first consider the evidence on site works and then the resultant impacts on the ecological resources.

34 The B2 Oxford Falls Valley Locality Statement prescribes a housing density of 1 dwelling/20 ha, which is a significant indicator of the desired future character of this area. According to the planners, based on the site area of 17.449 ha, the proposal has a housing density of 1 dwelling/0.264 ha. Consequently the planners agree that this development will appear significantly different from that envisaged by the current planning controls.

35 However the provisions of the SEPP nevertheless set this density control, so as to enable approval providing the compatibility criteria is considered. But in doing so the design principles in Division 2 require consideration of any ‘desired future character statements’ (DFC) to ensure that any new buildings contribute to the quality and identity of the area.

36 Of particular relevance is the Oxford Falls Valley locality DFC states that the present character will remain unchanged except in described circumstances, and

The natural landscape including building platforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms as a result of the buildings themselves or the associated works including access roads and services…

37 As noted previously, the site has 2 distinct topographical areas, being the upper area (plateaux) above the rock embankment where the development is to be undertaken and covering an area of approximately 4 ha. The larger, remaining area is below the embankment and it is not subject to development, except for vegetation clearing to create and maintain the APZs.

38 The concentration of the development on the plateaux involves extensive site regrading to achieve the design density of buildings and infrastructure. This opens up this area to some extent because of the extensive vegetation removal and increases the visibility of the development.

39 By reference to the cut/fill plans in Exhibit H, it is apparent that most of the plateaux area is subject to regrading to accommodate the form of 2 – storey dwellings proposed. These plans show that on the basis of a series of cross sections that there is to an estimated cut of 27000 cu m and fill of 18000 cu m.

40 The building form adopted is to generally follow the natural contours falling to the east but introduce a series of benches that require the construction of a series of retaining walls to obtain acceptable road gradients, which then allow elevated vehicular access to the western side of the upper units and the lower level units obtaining access from the eastern side.

41 As a consequence of this benching, the lower units have a 3m high (approximately) retaining wall compounding their western courtyard, which I consider reduces amenity. There is also the significant retaining wall proposed along the top of the existing sandstone embankment, which ranges in height from about 0.6m to 5m over a distance of about 475m, with an average height in the order of 3m. This then results in most of the dwellings being located above the natural ground levels.

42 Whilst the level of detailing on the plans tendered to the Court is somewhat difficult to interpret, nevertheless reference to the typical cross section 3 (Refer to Attachment 1), shows the major extent of re-contouring the landform to obtain the desired gradients to achieve the appropriate amenity for a senior’s type development.

43 In this regard, I note that the SEE states that a comprehensive site analysis was undertaken to achieve a design response where:

44 However my assessment is that the proposal necessitates a major regrading of the entire building area on this plateaux, in order to achieve reasonable gradients for the retirement village. This is obviously demonstrated by the imposing 475 m retaining wall atop the significant rock embankment.

45 Mr Kerr consequently does not consider the site is suitable for the proposed development as it is not consistent with the desired future character or the scale of development to achieve the outcomes sought after for the B2 Locality because:

46 Ms Richards disagrees with this opinion and supports the development on the basis that:

47 In the circumstances, my assessment is that the proposed works involve substantial disturbance of the existing vegetation and landform on the plateaux by the benching and retaining walls. Therefore I consider it reasonable to rely on the opinion of Mr Kerr that this proposal represents an overdevelopment, which is not consistent with the provisions of the DFC.

48 Visual impact; A detailed visual analysis from various vantage points was undertaken by Dr Lamb, which was then assessed by Mr A Powe and Mr Robinson. Despite some reservations about the accuracy of the analysis due to the site complexity leading to assumptions about topographical details, this resulted in their agreement that there would be minimal visibility of the development from the lower level Narrabeen Lagoon and therefore would not be inconsistent with the DFC of the B2 Locality.

49 However Mr Powe and Mr Robinson expressed concerns regarding visual impacts from other areas, particularly when the effect of the vegetation removal from the APZ is taken into account. Their main concerns relate to the visual impacts of the proposed retaining wall and the cumulative effect of the resultant buildings and removal of mature vegetation above this retaining wall.

50 They say that from various observation points, the buildings will “present visually as 40m long buildings joined end to end in various configurations across the site. This results in block length configurations of 160m for units 1 – 4, 200m for units 5 – 9, 120m for units 10 – 13 and 80m for units 14, 15.” Even though the planning principles accept development, which is compatible with adjacent use, the proposal extends well beyond the B8 locality resulting in unsatisfactory visual impacts.

51 According to Dr Lamb, even though the proposed development is of a different built form character to that adjacent, it would have moderate/ high compatibility with the DFC statement. Furthermore, he considers that appropriate landscaping can be incorporated to mitigate any adverse visual impacts.

52 One on the critical elements of the visual impacts concerns the need to remove further mature vegetation in order to provide an adequate APZ to meet the RFS requirements. These requirements are for the modification to reduce fuel loads in the bushland area (about 4 ha), to be managed as an inner protection zone.

53 In light of the disparate opinions on the resultant visual impacts, I am satisfied that the proposed development will entail complete regrading of the development site leading to removal of most vegetation. Whilst there is to be replacement vegetation that complies with RFS APZ requirements, nevertheless I consider the overall buildings will appear as an elongated; continuous built form, which is not characteristic of the immediate area. Coupled with the dominant 475m long retaining wall atop the embankment, the visual impacts will not protect or enhance the natural landscape as envisaged in the DFC.

Ecological impacts

54 As part of the development assessment process, a number of detailed ecological investigations of the site were undertaken. They revealed the existence of 7 vegetation species on the site, none of which are listed as threatened species. A total of 46 fauna species were recorded, of which Rosenburgs Goanna Varanaus rosebergi (Goanna) and the Southern Brown Bandicoot (SBB) are identified as threatened species under the TSC Act. During the appeal, the Court was also informed that a new Cicada species had been found on the site but specific details were not provided for examination and it has not been listed under the TSC Act at this stage.

55 In response to the diversity of species on the site, the applicant prepared a Conservation Management Plan (CMP) to “guide the conservation activities within the Conservation Area, the management of the APZ and to minimise any indirect impacts as a result of the proposed development”.

56 Dr Wotherspoon, Mr Wellington and Mr Humphries assessed the ecological impacts in detail, initially in a joint reports, which were then embellished with further separate reports that contradicted some of the initial findings. Notwithstanding the significant differences in opinion by these experts, I am satisfied that:

57 Consequently Dr Wotherspoon considers the site unsuitable for the development because of the loss of vegetation forming habitat for the identified fauna and likely impacts on the Goanna and SBB. But Both Mr Humphries and Mr Wellington agree that the development will not cause significant impacts that would lead to the refusal of the application. Furthermore that the site will be revegetated with appropriate plantings in accordance with the Conservation Management Plan.

Bushfire Risk

Integrated

Development

Asset Protection Zones

The intent of measures is to provide sufficient space for fire fighters and other emergency services personnel, ensuring radiant heat levels permit operations under critical conditions of radiant heat, smoke and embers, while supporting or evaluating occupants.

1 At the commencement of building works and in perpetuity the property around the development shall be managed as follows as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bushfire Protection 2006’ and the NSW Rural Fire Service’s document ‘Standards for asset protection zones’.

west for a distance of 38 metres as an inner protection area;

north for a distance of 40 metres as an inner protection area;

north east for a distance of 52 metres as an inner protection area;

east for a distance of 59 metres as an inner protection area; and

south east for a distance of 52 metres as an inner protection area (APZ) as depicted on figure 2 of the bush fire report by Eco Logical Australia Pty Ltd dated 25 February 2009.

58 The implementation of these conditions requires considerable vegetation fuel reduction around the development. In particular on the eastern sides the inner protection areas extend beyond the rock embankment about 50m. This will require a thinning of the existing vegetation, including some canopy trees to provide adequate separation.

59 Goanna; There was a significant amount of discussion about the goannas. Dr Wotherspoon recorded a number of observations of both adult and juvenile goannas on the site, together with some 38 termite mounds. He says that this is evidence of a breeding population that will be impacted upon and consequently considers that a SIS is required.

60 Apparently the goannas use termite mounds as breeding nests. Their form and composition acts somewhat like an incubator, from which hatchlings burrow out via small holes. Therefore the existence and maintenance of termite mounds are an important element for the goannas.

61 But Mr Wellington, who has expertise with environmental assessment of environmental on threatened species, particularly reptiles and amphibian species, says that while some individual goannas may be affected, there would not be a significant impact on any “Local populations” (as defined by DECC 2005). He bases this partly on the ELA (ecology consultants) 7 part test, which concluded that a significant impact was not likely due to the relatively small area of habitat to be lost, the fact that the “Local population” extended well beyond the subject site and that there are significant contiguous areas classified for conservation providing satisfactory habitat.

62 Mr Wellington also says that a significant number of the claimed 38 termite mounds are off-site and a re-analysis of the claimed concentration of the 15 onsite mounds actually comprised 6 terrestrial termitaria and 4 elevated ant nest mounds, with 5 others not being observed. Taking into account the lack of attractions of the ants nests for breeding and the adjoining undisturbed habit, then he does not consider the local population is likely to be placed at risk.

63 For my assessment of these opposing positions and taking into account the reasonably distinct area of the plateaux, which is to be substantially regraded, I am satisfied to rely on Dr Wotherspoon’s approach including the following points:

Edge effects

Insecurity of adjoining land including Crown Land

Precautionary Principle

64 From my assessment of the evidence, including the observations of some of the objectors and observations at the view, I rely on the 7 Part Test presented by Dr Wotherspoon, which includes:

In the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction ?

Yes. There is a concentration of termite mounds with evidence of use by Heath Monitor as egg laying sites in the footprint of the development. Loss of habitat will occur with the construction of the development and related infrastructure and clearing of the asset protection zone. The remaining habitat will be of reduced quality as it is likely that domestic dogs and cats from neighbouring residential properties will forage over the site, using the proposed walking trails as access to prey on hatchlings, juveniles and adult Heath Monitors. The site will be largely unusable by the heath monitor for foraging and breeding and will be a high risk site from domestic predators. Termite mounds are egg-laying sites for Heath Monitor so any change to vegetation cover, dead wood and microclimate is expected to reduce the abundance of mounds, further compromising the population of Heath Monitor such that that viable population of heath monitors is likely to be placed at risk of extinction.

65 For these reasons and taking into account the disparate opinions of the well qualified experts, I consider it appropriate to take a cautious approach whereby a SIS for the Heath Monitor is required.

The evidence of the impact on the SBB is tenuous in my assessment. Whilst the site apparently has suitable habitat, I note the evidence that the species notoriously difficult to detect, particularly when the population is low. The consideration of likely impacts arises from a Wildlife Atlas record of 2002 and a hair tube record (analysis document from Barbara Triggs dated January 2001, received 21 September 2009), which confirms the species presence.

67 Dr Wotherspoon considers that there is likely to be a significant impact on the species and therefore a SIS is required because:

68 However Mr Humphries, who is an ecologist with particular expertise in the management and recovery of threatened bandicoot species, does not consider there would be any significant impact on the life cycle of this species such that a viable population is likely to be at risk.

69 In this regard, he refers to the DECC (2007) definitions that local populations is that which occurs in the Study Area. In this case the study area refers to the subject site and any additional areas likely to be affected by the proposal, either directly or indirectly.

70 Consequently he says that any local population will extend well beyond the direct area of impact, as shown in the NSW Wildlife Atlas. However the main claim for the existence of the species in the area is the “hair” record, which at best indicates an individual SBB was recorded at the site. But it apparently give any other specific details of the animals sex, breeding or not breeding and whether resident or transient.

71 Mr Humphries referred to his direct involvement at the DEC in the preparation of the recovery plan for the SBB between 1999 and 2005. This apparently followed some incorrect identification of bandicoot species at the time. Consequently in May 2002, Mr Humphries and Mr Wellington commissioned genetic studies through Macquarie University to correctly identify SBB.

72 It seems that even though some other surveys have been undertaken in the area, no other SBB has been trapped. Consequently, Mr Humphries has concluded from significant survey effort and no further information since 2001, that there is no confirmed population of SBB on the site or adjoining lands. Furthermore, whilst the area may once have supported SBB, it is unlikely they will recolonise as there is no confirmed source of “population” capable of colonising the site. Also, it is unlikely under the DECCW policy’s on reintroduction of threatened fauna that the area would be chosen because of the wide range of existing threats, such as foxes, cats and road mortality.

73 Mr Humphries’s evidence is consistent with the 7 Part Test undertaken by the environmental consultants ELA, who concluded that a SIS was not required. This position was originally accepted by Dr Wotherspoon and I do not consider his additional evidence changes this conclusion.

Public Interest

74 This development attracted considerable attention from neighbours and other residents with particular interests and experience in this area. A number of objections were lodged, which concern:

75 The experts in response to the contentions have dealt with most of these concerns and I have therefore covered them as aforementioned. However whilst the drainage issue was initially raised, council did not pursue this issue because of agreements by the respective engineers.

76 The joint engineering report in Exhibit 10 addressed onsite detention systems, stormwater quality management systems and the effects of upstream overland flows. Based on the details provided, including computer modelling, the engineers agreed that the relevant drainage matters could be covered by conditions in any consent. I note that these conditions are not such as to address existing flooding concerns, which would not be exacerbated by the proposed development.

77 In the absence of any relevant and substantive evidence, I rely on the engineer’s agreement that satisfactory conditions of consent could cover the drainage concerns.

Conclusions

78 Having considered the evidence including the objections, the submissions and undertaken a view, I do not consider this application merits consent.

79 The primary planning control in this matter is the SEPP (HSPD), which permits the retirement type development in the current “zoning” circumstances. The permissibility of this form of development is usually dependent on the specific land zonings in the relevant LEP, which in this case is WLEP 2000. Whilst the format of the current WLEP is different from other LEPs, nevertheless SEPP (HSPD) in cl 8 specifically permits such development in the B8 (Red Hill) area.

80 Insofar as WLEP 2000 utilises ‘locality statements’ to guide future development, the subject site is situated in the ‘B2 Oxford Falls Valley Locality’ and based on previous Court decisions dealing with the relationship of land zonings to ‘locality statements’, a suitable retirement village is permissible with consent.

81 The cases referred to are:

Gillespies v Warringah Council [2002] 124 LGERA 147.

Retirement by Design v Warringah [2007] 153 LGERA 372.

Mete v Warringah Council [2004] 133 LGERA 420.

82 However there is a Draft WLEP, which proposes to zone the site E3 Environmental Management that would prohibit this form of development. The Court was informed that this draft WLEP has received a s65 Certificate and council’s submission is that this signals both the councils and the departments views for the future development of this land and therefore it should be given significant weight in the refusal of the current application. Notwithstanding this, there is a savings clause to deal with previously lodged applications.

83 From my consideration of the detailed submissions and the evidence about expectations for similar developments of nearby bushland, I do not give the draft WLEP determinative weight because I am not satisfied it is imminent and in particular certain. However I have taken into account that if it is approved, then the character of this area will remain predominantly in its bushland state.

84 Apart from this, my determination is based on the current SEPP and WLEP 2000 provisions where cl 29 (2) of the SEPP contains an important link between these controls. It requires the consent authority to take into account certain matters listed in cl 25 (5) (b). Of particular relevance, an assessment of the compatibility of the development with the natural environment is required together with the impacts in terms of the future uses of the land.

85 The design principles in Division 2 of the SEPP reinforce this consideration in that cl 33 requires the neighbourhood amenity and streetscape to recognise the desirable elements of the current character, as expressed in local planning controls and the desired future character statements, so that new buildings contribute (presumably in a positive way) to the quality and identity of the area.

86 In this case then, there is the specific B2 Locality Statement that is relevant in my assessment. This requires the natural landscape to be protected, whilst allowing low intensity and density housing. As I have noted previously, an appropriate ‘retirement village’ is permissible on the site.

87 However it is apparent that this application seeks to optimise the development potential of the site. Whilst the proposal results in a low FSR of approximately 0.07:1, nevertheless this development is concentrated on the more prominent plateaux area. In order to satisfy the RFS conditions for the provision and maintenance of the APZ inner protection area, most of the mature vegetation on the plateaux will be removed. This is not consistent with the DFC.

88 The optimisation of the building form by way of the various building clusters and site benching to create the relatively level building platforms, involves significant earthworks resulting in a series of retaining walls up to 3m high (see typical section 3) at the rear of the lower level courtyards.

89 Consequently most of the rock features of the site will be lost. The large-scale site regrading works also necessitate the removal of the hanging swamp, which is an attractive natural feature of the site. Overall the details shown in exhibit H indicates that the development site area on the plateaux will involve some 27000 cu m of cut and 18000 cu m of fill. In the circumstances of this case, I consider this level of earthworks is of a major scale causing significant impacts, which does not minimise disturbance to the landscape and landform as envisaged by the DFC.

90 As I have stated, it is my opinion that the proposed elongated form of development appears optimal in the existing bushland setting. From observations at the view, I am then satisfied that the building form from various external observation points will result in the development appearing as continuation of the building clusters along plateaux of an apparent intensity and bulk much greater than the nearby Red Hill estate. Combining this with the significant limitations on replacement landscaping, particularly canopy trees, so as to comply with the inner protection area APZ, it will have a negative visual impact and not positively contribute to the quality and identity of the area.

91 I consider the 475m long retaining wall element (average height 3m) atop the rock embankment is an intrusive, foreign element, which is not consistent with minimising cut/fill and it would result in a negative visual impact from various available viewing opportunities. This conclusion is consistent with the opinion of Mr Kerr, on which I rely, that the visual impacts are unsatisfactory and contribute to the failure of this application.

92 With regard to the ecological issues, I am satisfied that the site is ecologically sensitive and due care is required considering the extent of earthworks in effectively transforming the plateaux. Whilst comprehensive site investigations have been undertaken by highly qualified ecologists, significant disagreements still remain about the impacts of this proposed development.

93 Having considered the disparate opinions and in light of the diversity of species present, a cautious approach should be taken. I accept that an appropriate Conservation Management Plan can be finalised, which addresses the ongoing care of ecology. But I also accept the evidence that there is a local population of Rosenburg’s goannas on the site that is likely to be placed at risk of extinction. Therefore, I rely on Dr Wotherspoon’s evidence that a SIS should be undertaken for this species prior to any development proceeding.

94 In the ultimate, I consider this site is not suitable for the proposal as it represents an overdevelopment of the site, which exceeds its environmental capacity. It is apparent that a smaller scale development, which incorporates more single level dwellings, would significantly reduce the extent of earthworks, including the substantial reduction in retaining walls, so as to more reasonably achieve the DFC vision. As such it does not adequately satisfy the provisions of cl 29, 25 (5) (b) and 33 of SEPP (HSPD).

95 I also give some weight to precedential considerations because of other similar development opportunities on nearby land. I also think that the PAC findings that further planning investigations are required prior to the intensification of urban development in this particular area should be heeded in terms of possible adverse “nibbling effects”, which are contrary to orderly development considerations and the achievement of desirable environmental outcomes.

96 For these reasons the Court orders.

3 The exhibits may be returned except 1, H and O.

R Hussey

Commissioner of the Court

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Beacon Hill Retirement Pty Limited v Warringah Council [2010] NSWLEC 1011

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Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181

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Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181

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CITATION:	Beacon Hill Retirement Pty Limited v Warringah Council [2010] NSWLEC 1011
PARTIES:	APPLICANT Beacon Hill Retirement Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	10322 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Seniors Living development; site suitability, strategic planning; visual impact; ecological impacts, public interest.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (HSPD) Warringah Local Environmental Plan 2000 Draft WLEP 2000
CASES CITED:	Gillespies v Warringah Council [2002] 124 LGERA Retirement by Design v Warringah [2007] 153 LGERA 372 Mete v Warringah Council [2004] 133 LGERA 420
DATES OF HEARING:	19-20, 22 October 2009
DATE OF JUDGMENT:	19 January 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso (SC) SOLICITOR Carroll & O'Dea Lawyers RESPONDENT Mr J Robson (SC) SOLICITOR Wilshire Webb Staunton Beattie