Brewster Murray Pty Ltd v Northern Beaches Council

[2019] NSWLEC 1152

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Brewster Murray Pty Ltd v Northern Beaches Council [2019] NSWLEC 1152
Hearing dates:	19-21 March 2019
Date of orders:	28 May 2019
Decision date:	09 April 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	Directions, refer to [78] below  Orders, refer to [81] below
Catchwords:	DEVELOPMENT APPLICATION: seniors’ housing development comprising 40 residential units –consistency with the desired future character of the locality – impact on ecological values – flood affected land
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Warringah Local Environmental Plan 2000 Warringah Local Environmental Plan 2011 Water Management Act 2000
Cases Cited:	Mete v Warringah Council [2004] NSWLEC 273 Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87
Category:	Principal judgment
Parties:	Brewster Murray Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant)   Solicitors: McCabe Curwood Pty Ltd (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/372004
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2017/0294 for a seniors’ housing development comprising 40 residential units (the proposal) at 53 Little Willandra Road, Oxford Falls (the site) by Northern Beaches Council (the Council).

2. The appeal was subject to conciliation on 27 June 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 3 August 2018, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 26 October 2018 for the applicant to amend the application by relying on amended drawings (Ex A). Leave was unopposed and granted by the Court on the final day of the hearing for the applicant to amend the application by relying on amended drawings (Ex AA) that incorporated minor changes to the proposal, including the following:

• the layout of unit LG15 has been reflected in accordance with the agreed evidence of the urban design and planning experts to improve the amenity of the outdoor terrace;

• the height of the retaining wall at the western end of the proposal has been lowered;

• the fire trail for emergency egress is to be constructed from ‘SurePave Permeable Paving’ with a grassed surface; and

• lift lobbies and passing bays to pathways have been added, consistent with the recommendations of the Access Review Report by Morris Goding Access Consulting dated 15 March 2019 (Ex Q).

Issues

4. The Council’s contentions can be summarised as:

• The proposal is inconsistent with the desired future character statement for the B2 Oxford Falls Locality and does not provide for the preservation of this character.

• The proposal is excessive in bulk and scale.

• The proposal fails to minimise its impact on remnant indigenous flora, including canopy trees identified as T24 and T41, as well as understorey vegetation and ground cover.

• The proposal fails to maintain and enhance the distinctive water courses and habitats located on the site which includes creeks and native species aquatic habitat. The proposal fails to retain and complement distinctive environmental features of the site.

• The site is identified as flood affected land. The finished floor levels (FFLs) of four units are below the PMF of 15.2m AHD.

5. The applicant opposes a conditions of consent requiring a Section 88B of the Conveyancing Act 1919 Instrument over the area of the site to be retained as bushland, in which Northern Beaches Council are to be named as the sole authority, binding the owners of the land to manage and protect, conserve and rehabilitate the native bushland and riparian areas of the site (condition 19, Ex 9).

6. Following the amendments made to the proposal for which leave was granted by the Court on 26 October 2018, the Council submits that the proposal is broadly acceptable, particularly the configuration of the portion of the proposal to the east of the creek, but presses for the deletion of units LG05, LG06, G17, G18, 117 and 118 on the basis of the evidence of Council’s urban design and planning experts; the deletion of LG04, G07 and G08 on the basis of the evidence of Council’s arboricultural expert; and the raising of the FFLs of LG12, LG13, LG14 to RL15.0 and LG20 to RL15.2 on the basis of the evidence of Council’s Civil Engineer and water management expert regarding stormwater.

The site and its context

7. The site is on the western side of Little Willandra Road, Oxford Falls and has an area of 3.3ha. It is a large L shaped site with a northern boundary of 316.58m, western boundary of 124.82m, southern boundary of 220.94m and a street frontage boundary of 54.865m.

8. The site is steeply sloping with the lowest point being towards the centre of the site at RL15 where a creek passes through the site flowing in a north-eastern direction, close to the corner boundary with 55-57 Little Willandra Road and into a concrete headwall on the shared boundary with 51 Little Willandra Road, where the creek is then piped across the adjoining property. The site slopes steeply from the rear, western boundary down to the creek and from the street boundary towards the creek. The western part of the site features rocky outcrops and dense native tree and shrub cover extending to the highest point of the site in the north-western corner at approximately RL65.

9. There is a two storey dwelling on the eastern portion of the site, close to the street boundary.

10. The adjoining property to the north at 51 Little Willandra Road is “Willandra Bungalows”, a seniors’ housing development consisting of 28 buildings housing 88 units.

11. The adjoining property to the south at 55-57 Little Willandra Road and which occupies the area within the L shape of the site, is a residential dwelling, significantly raised above the existing ground level on the northern side over a series of concrete columns.

12. The land to the west of the site is native bushland.

13. There is a residential suburban subdivision on the opposite side of Little Willandra Road.

14. There are a number of seniors’ housing developments within the vicinity of the site.

The proposal

15. The proposal consists of the following works:

• Demolition of all existing structures.

• Site preparation works, bulk earthworks and tree removal.

• The construction of five buildings and a basement carpark identified as Group A on the eastern side of the creek and the construction of three buildings and a basement carpark identified as Group B on the western side of the creek. The proposed development is for 40 units.

• The provision of utilities and services.

• Site landscaping and bushfire hazard management works to create an asset protection zone (APZ).

16. The proposal includes retaining the rear portion of the site for a depth of approximately 121m as native bushland.

Planning framework

17. The site is located in an area identified as “Deferred Lands” under cl 1.3(1A) of Warringah Local Environmental Plan 2011 (LEP 2011) (Land Zoning Map Sheet LZN_007 of LEP 2011). As such, LEP 2011 does not apply to the site and the proposal is subject to the provisions of Warringah Local Environmental Plan 2000 (LEP 2000).

18. The applicant relies on LEP 2000 for the permissibility of its proposed development on the site and the Council did not raise an issue with this approach (see Mete v Warringah Council [2004] NSWLEC 273 at [32]-[33] and Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87 at [73]). The proposal is for a permissible purpose under LEP 2000, as seniors’ housing is classified by the relevant Locality Statement as Category Two development pursuant to cl 14(1) of LEP 2000, on land described in (c) under the heading “Housing Density”, as follows:

(c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of “housing for older people or people with a disability” and the development complies with the minimum standards set out in clause 29

19. The parties agreed that the site is land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of “housing for older people or people with a disability”.

20. The application therefore does not rely on the terms of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP Seniors Housing”) for permissibility.

21. I accept the Council’s submission that the aims of SEPP Seniors Housing are a relevant consideration (see Mete v Warringah Council [2004] NSWLEC 273 at [31]), as follows:

(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.

22. The site is located within the B2 Oxford Falls Valley Locality under LEP 2000. Clause 12 of LEP 2000, the operative provision, is in the following terms:

12 What matters are considered before consent is granted?

(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with:

(a) any relevant general principles of development control in Part 4, and

(b) any relevant State environmental planning policy described in Schedule 5 (State policies).

(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with:

(a) the relevant requirements made by Parts 2 and 3, and

(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.

(3) In addition, before granting consent for development classified as:

(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement,

but nothing in a description of desired future character creates a prohibition on the carrying out of development.

23. Clause 18 of LEP 2000 is in the following terms:

18 How will the built form of development be controlled?

(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.

(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.

(3) Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control.

24. Clause 29 sets out a set of reverse development standards in respect of applications for Housing for Older People or People with Disabilities by prescribing the grounds which cannot be relied upon for refusal of the application, including height (8m from existing ground level to the ceiling of the topmost floor), floor space ratio, landscaped area, private open space and parking. The applicant submits firstly, that none of these grounds stand in the way of this application and secondly, that there is a legal debate as to the operation of cl 29 in combination with (c) of the Housing density standard in the Locality Statement (quoted above at [18]) and whether or not a seniors housing development is a permissible purpose under the land use categories of the B2 Locality in LEP 2000 if the development exceeds those “minimum standards” in cl 29, which in conjunction with (c) of the Housing density standard operate as maximum standards. It is, however, not necessary for me to construe the conundrum of whether exceedance of those standards in cl 29 operates as a prohibition as the proposal complies with those maximum standards in cl 29.

25. The Desired Future Character (DFC) of the B2 Oxford Falls Valley Locality is as follows:

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

Future development will be limited to new detached style housing conforming with the housing density standards 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 siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.

26. No contentions are raised concerning cl 40 of LEP 2000, ‘Housing for older people or people with disabilities’ or Schedule 16, ‘Principles and standards for housing for older people or people with disabilities’.

27. The site is identified as flood affected land and so the terms of cl 47 of LEP 2000 are relevant to the application.

28. The relevant site planning and building design clauses in LEP 2000 are as follows:

56 Retaining distinctive environmental features on sites

Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.

In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses.

57 Development on sloping land

On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope.

In particular:

• the amount of fill is not to exceed more than 1 metre in depth, and

• fill is not to spread beyond the footprint of the building, and

• excavation of the landform is to be minimised.

The geotechnical stability of sloping land to support development is to be demonstrated.

Consent must not be granted for development involving the erection of a structure, including additions to an existing structure, on land identified as being potentially subject to landslip on the Landslip Hazard Map unless the consent authority has considered a report from a suitably qualified engineer as to the geotechnical stability of the land to support such development and an assessment of stormwater prepared by a suitably qualified hydraulic engineer.

58 Protection of existing flora

Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.

60 Watercourses and aquatic habitat

Development is to be sited and designed to maintain and enhance natural watercourses and aquatic habitat.

Note. Development within 40 metres of a watercourse requires a permit pursuant to the Rivers and Foreshores Improvement Act 1948, from the Department of Land and Water Conservation.

63 Landscaped open space

Landscaped open space is to be of such dimensions and slope and of such characteristics that it will:

• enable the establishment of appropriate plantings to maintain and enhance the streetscape and the desired future character of the locality, and

• enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale, and

• enhance privacy between dwellings, and

• accommodate appropriate outdoor recreational needs and suit the anticipated requirements of dwelling occupants, and

• provide space for service functions, including clothes drying, and

• facilitate water management including on-site detention and the infiltration of stormwater, and

• incorporate the establishment of any plant species nominated in the relevant Locality Statement, and

• enable the establishment of indigenous vegetation and habitat for native fauna, and

• conserve significant features of the site.

66 Building bulk

Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.

In particular:

• side and rear setbacks are to be progressively increased as wall height increases,

• large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief, and

• appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works.

29. Clauses 76 Management of stormwater and 78 Erosion and sedimentation of LEP 2000 are relevant to the application. Clause 78 is in the following terms:

78 Erosion and sedimentation

Development is to be sited and designed, and related construction work carried out, so as to minimise the potential for soil erosion.

Where some degree of soil erosion and sedimentation is likely to occur, it is to be managed at the source to prevent any reduction in water quality downstream of the development site.

In this case, a soil and water management plan which ensures minimum soil erosion and maintenance of downstream water quality that has been prepared in accordance with the Council’s “Specification for Erosion and Sediment Control” and “Design and Specification Manuals for Engineering Works” is to be considered by the Council before consent for the relevant development is granted. The plan is to outline practices proposed to control runoff, mitigate soil erosion and trap pollutants before these can reach downslope lands and receiving waters.

30. “Warringah Council Policy, Protection of Waterways and Riparian Land”, adopted by the (Warringah) Council on 24 August 2010 (Ex 1, tab 33) (“the policy”), was raised in relation to the evidence of the stormwater experts. The purpose of the policy includes the following:

“This Policy provides Warringah Council and members of the public with guidance and direction having regard to the legislative framework of, and guidelines associated with, the Water Management Act 2000 (NSW) [“the Act”] and Warringah Council’s own planning instruments. The object of the Act is the sustainable and integrated management of the State's water for the benefit of both present and future generations.

Waterways and riparian land in the Warringah local government area are to be managed so that priority is given to those that:

• are significant to threatened species,

• are within mapped wildlife corridors (see DCP Map Wildlife Corridors),

• most closely represent natural conditions, or

• are classified as Group A Creeks.”

Public submissions

31. Seven resident objectors provided evidence at the commencement of the hearing onsite and one resident objector gave her evidence in Court on the second day of the hearing. The concerns of the objectors can be summarised as:

• The amended proposal is an improvement on the original proposal.

• There is no public bus stop outside the proposed development.

• The proposal will increase the traffic in the area.

• The Willandra Bungalows is a single storey development and the proposal is two storeys.

• The emergency egress of compacted gravel will be eroded.

• The proposal contravenes the planning regime as there is more than one dwelling on the site.

• The site is dominated by natural bushland. The proposal will destroy and damage habitat for native species. The proposal will change the vegetation within the riparian corridor.

• The proposal will result in erosion and runoff and pollute the stormwater. The natural watercourse drains into the boundary pit and this creates flooding on the site. The proposal does not include a detention pit. The fire trail will not absorb water.

• The APZ required causes a disproportionate impact that is inconsistent with the requirements of the riparian corridor.

• The terrain is unsuitable for seniors housing.

Expert evidence

32. The applicant relied on the expert evidence of Mr Michael Baker (planning), Ms Karla Castellanos (urban design), Dr Meredith Henderson (ecology) and Dr Daniel Martens (stormwater). The Council relied on the expert evidence of Ms Lashta Haidari (planning), Ms Lea Lennon (urban design), Mr Brendan Smith (ecology) and Mr Michael Shaw (stormwater).

Urban design and planning

33. The Council presses for the deletion of units LG05, LG06, G17, G18, 117 and 118 on the basis of the evidence of Council’s urban design and planning experts.

34. I accept the agreement of the experts that the amendments shown in Exhibit AA to Unit G15 to reflect the layout and locate the terrace on the eastern side of the main bedroom satisfactorily addressed the amenity issue raised in relation to the relationship between the terrace and the raised level of the fire trail to the north of the terrace.

35. Ms Lennon was satisfied that the amended proposal to the east of the creek is acceptable.

36. Ms Haidari and Ms Lennon raised the following issues regarding the proposal (following the agreed amendments made in Exhibit AA):

• There should be a continuous path of travel for units 116, 117, 118 and 119 across the site without having to use a lift. All units should be accessible without the use of a lift.

• The amenity of units G17, G18, 117 and 118 is unacceptable as the western outlook from these units is too close to the high retaining wall on the western side of the fire trail.

• The Group B buildings are unacceptable as the units are grouped in three attached units on each level and their building footprint is excessive. There should be only two attached units on each level to achieve a low intensity development consistent with the DFC statement. Units G17, G18, 117 and 118 should be deleted in order to minimise the impact of the proposal at the rear of the proposal and minimise the loss of vegetation. The existing development on the adjoining property should not be used as a cue for the intensity of development on the site.

• The proposed private bus to service the development should be imposed on the consent by condition.

37. According to Mr Baker, the form of the proposal is consistent with the character established by other development in the area and the proposal does not rely on the form of the adjoining “Willandra Bungalows”, however, Mr Baker notes that one cannot ignore the form of the development on the adjoining property, as it forms part of the existing character of the locality.

38. There is no contention raised in relation to the accessibility of the units at the on Level 1 at the western end of the proposal and no evidence was adduced by the Council in relation to the wheelchair access requirement in cl 40 of LEP 2000. I accept the conclusions of the Access Review Report that the proposal complies with the access requirements in cl 40 of LEP 2000 as the whole site has a gradient in excess of 1:10 and less than 50% of the units do not have an accessible path of travel from the public road to the unit entrance door (Ex Q, p 7). Only four units of a total of 40 on this sloping site have to use a lift to access the central spine pedestrian circulation along the site to reach the road and there is no requirement for all units to be accessible without the use of a lift on a steeply sloping site in cl 40 of LEP 2000.

39. I do not accept the evidence of Council’s experts that the amenity of units 117 and 118 is compromised by the retaining wall at the western end of the proposal, on the western side of the fire trail. Units 117 and 118 have a finished floor level of RL21.0 and both living areas have windows in the western elevation. The terrace of 117 is on the north-western corner of its building and the terrace of 118 is on the south-western corner of its building. The retaining wall is approximately 6m from the western façades of each building. The top of the retaining wall at the closest point to 117 is RL 21.58 falling to RL21.4 and at the closest point to 118 is RL21.72. In a sitting or standing position, a resident in either unit on the first floor will have an expansive view across the top of the retaining wall and up the steeply sloping hill and from the terraces the views will wrap around either to the north or the south. The retaining wall does not compromise the amenity of either unit.

40. I accept the evidence of the Council’s experts that the amenity of units G17 and G18, on the ground floor, is somewhat compromised by the western outlook from these two units towards the retaining wall. Units G17 and G18 have a finished floor level of RL18.0 and both living areas have windows in the western elevation. The terrace of G17 is on the north-western corner of its building and the terrace of G18 is on the south-western corner of its building. The retaining wall is approximately 6m from the western façades of each building. The top of the retaining wall at the closest point to G17 is RL 21.58 falling to RL21.4 and at the closest point to G18 is RL21.72. In a sitting or standing position, a resident in either unit on the ground floor will look directly at the retaining wall. I do not accept the Council’s position that the amenity of these units is so compromised that they should be deleted from the proposal, as the units on the ground floor also have views respectively to the north or south and the view of the retaining wall is at a distance of approximately 6m from the western façade of the two buildings.

41. As mooted during the proceedings with the parties in response to Mr Shaw’s oral evidence, the Group B buildings could be raised at least 200mm and still comply with the maximum standard height of 8m under cl 29 of LEP 2000 (when measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point). Although the two ground floor units will still have a western outlook towards the retaining wall, raising the floor level of these units will subtly improve their outlook and their amenity and reduce the cut at the rear of the proposal.

42. I am satisfied that the bulk and scale of the Block B group is acceptable. It is the position of the fire trail and retaining wall coupled with the footprint of the Group B buildings that dictates the dramatic modification of this site at the western end of the proposal to create the building platform. Deleting units G17, G18, 117 and 118, as proposed by the Council, would not, in my view, significantly alter the overall form of the development, because the fire trail and its associated western retaining wall must necessarily be positioned adjacent to, and not on top of, the basement parking under these western units due to the levels of the driveway and fire egress. The driveway entry to the basement parking on the southern side of the basement must be at the same level as the floor level of the basement for cars to enter and exit, and as a consequence, the road that transitions into the fire trail to the west of the basement is below the ground floor level as it wraps around the south-western corner of the Group B buildings (see Section A, A304D, Ex A which is not amended by Ex AA). Deleting the four units at the western end of the proposal would not reduce the footprint of the Group B buildings, nor does would it reduce the height of the western retaining wall.

43. Whether Group B is three buildings of three attached dwellings on each level, or four buildings of two attached dwellings on each level, does not alter the overall building envelope of the proposal in terms of bulk and scale. I am satisfied that the density, bulk and scale of the proposal to the west of the creek is appropriate when balanced against the constraints of this site, including the steep slope of the land; the requirement for the APZ; the preservation of ecological values within the riparian corridor; and the preservation and protection of native bushland in the rear portion of the site.

44. I am satisfied that the proposal has a visual bulk and an architectural scale consistent with those structures on adjoining or nearby land and that it does not visually dominate the street or surrounding spaces.

Retention of Trees 4, 24 and 41

45. The Council presses for the deletion of units LG04, G07 and G08 on the basis of the evidence of Council’s arboricultural expert. The proposal retains Trees 24 and 41 (Ex D).

Tree 4

46. I accept the agreement of the experts that the footpath on the verge adjacent to Willandra Road can be constructed so as to accommodate the TPZ of Tree 4.

Tree 24

47. The experts agreed that Tree 24, an Angophora costata 15m high with a spread of 10m, has high ecological value. Tree 24 is located on the southern boundary shared with 55-57 Little Willandra Road. The experts agreed that there is a 9.98% encroachment into the TPZ of Tree 24, by the basement carpark and G07 and G08 (on the level over the basement). In Mr Powe’s view, the area of encroachment should include an additional 500mm to allow for the excavation beyond the façade of the basement which would increase the encroachment to 11% (Ex 11). It is his view that there is already an encroachment into the TPZ of Tree 24 by the vehicular entry to the adjoining site.

48. I accept Ms Hannon’s evidence that the incursion into the TPZ of Tree 24 by the proposal is acceptable, because the encroachment into the TPZ is less than 10% and the root mapping exercise demonstrated that there are no structural roots in the area to be excavated. There was no evidence pointed to onsite that the vehicular entry to the adjoining property has had or is having a detrimental effect on the health of Tree 24.

Tree 41

49. The experts agreed that Tree 41, an Angophora costata 16m high with a spread of 10m, has high ecological value. Tree 41 is located on the northern side of the site and to the east of the creek. The experts agreed that there is a 9.97% encroachment into the TPZ of Tree 41, by the unit LG04 and the basement carpark. Mr Powe was concerned that the fire trail and the road also encroach on the TPZ of Tree 41 (Ex 11).

50. I accept Ms Hannon’s evidence that the incursion into the TPZ of Tree 41 by the proposal is acceptable, because the encroachment into the TPZ by the building’s footprint is less than 10% and the tree is positioned downslope of unit LG04. The tree trunk is at RL14.85 (Ex C) and the FFL of unit LG04 is RL16.0 (A101E, Ex AA). The floor slab of LG04 is shown as supported on columns (Section 11, A302D Ex A).

51. The roadway is positioned above ground level so as not to physically disturb the TPZ of Tree 41. The fire trail, which is porous and to be used only in emergencies, is approximately on grade within the vicinity of the TPZ of Tree 41. I accept Ms Hannon’s evidence that these structures will have minimal impact on the health of Tree 41, because these species are relatively hardy and will adapt to the changed conditions.

Ecology

52. The Council contends that the proposal fails to maintain and enhance the distinctive environmental features, water courses and habitats located on the site which includes creeks and native species aquatic habitat.

53. Three threatened fauna species were recorded within the study area of the Biodiversity Management Plan (Ex G, p 7); the Powerful Owl, the Glossy Black Cockatoos and the Red-crowned Toadlet. The experts agreed that the 1.19 ha of native vegetation (Coastal Sandstone Gully Forest) would be removed or modified by the proposal, including 0.38 ha for the development footprint and 0.81 ha as an APZ. The experts agreed that the natural features of the site, including distinctive rock features and ledges, are preserved by the proposal. Dr Henderson noted that the amended proposal reduces the impacts on native vegetation.

54. The experts agreed that Trees 24 and 41 are identified as having high retention value and high ecological value. The experts agreed, following the preparation of the addendum ecology report, that the hollow in Tree 24 is relatively shallow and too small for use by the Powerful Owl. The ecological addendum report concluded that no Powerful Owls were observed entering or existing the hollows present in trees on the site during the targeted surveys carried out which were consistent with the Draft Threatened Species Survey Guidelines (Ex 5, p 11). For these reasons, I accept Dr Henderson’s opinion that the proposal will not have a significant impact on the habitat of the Powerful Owl.

55. According to Dr Henderson, “it is unlikely that the proposal will have significant impacts on the Glossy Black-cockatoo… [because] hollow-bearing trees present within the majority of the study area will not be removed… Further roosting and foraging habitat is widely available within the locality (up to 3,503 ha…) which will provide ongoing foraging and roosting resources for the species.” In her view, the proportion of the area to be modified for the creation of the APZ is a small fraction of the total home range for the local population of the Glossy Black-cockatoo. I accept Dr Henderson’s evidence that the proposal is unlikely to have a significant impact on the Glossy Black-cockatoo or its habitat.

56. The identified habitat of the Red-crowned Toadlet on the site (Ex G, Figure 4) is outside of and above stream of the footprint of the proposed development. I accept the agreement of the experts in relation to conditions 26 and 39 (Ex BB) requiring “frog exclusion fencing” to the specification included at condition 39 be installed around the boundary of the Red-crowned Toadlet habitat identified in Figure 4 of Ex G to prevent frogs from entering the construction site during construction. I accept Dr Henderson’s opinion that the Red-crowned Toadlet favours a more open canopy and the creation of the APZ is not detrimental to the Toadlet habitat. The Biodiversity Management Plan includes measures to manage and treat potential impacts on the habitat of the Toadlet where it intersects with the APZ and there are a number of recommendations in the Flora and Fauna Report to mitigate potential impacts of the development on the riparian corridor and habitat of the Toadlet. Any recommendations of the Flora and Fauna Report (Ex J, p 25) not already incorporated into the Biodiversity Management Plan are to be incorporated into the amended Biodiversity Management Plan under condition 26.

57. Dr Henderson noted that additional measures to manage longer term human interactions with the riparian corridor could be addressed by the Biodiversity Management Plan (Ex 5, p 12). These additional measures for the long term management of the habitat area are a condition of consent at condition 79 (Ex BB).

58. According to Dr Henderson, part of the APZ is located in this area of the riparian corridor that is in poor condition, and the proposed trade-off of the development is the future management of invasive weeds within the riparian corridor under the Biodiversity Management Plan commitments (Ex G and condition 26, Ex BB). Mr Smith agreed that in the downstream area of the creek on the site, the quality [and] condition of riparian vegetation is poor.

59. I accept the agreements of the experts and I prefer Dr Henderson’s evidence that the proposal does not result in significant impacts to threatened species or their habitats.

Stormwater

60. In Mr Shaw’s opinion, the riparian corridor should be at least 40m wide instead of the proposed 20m wide. According to Dr Martens, the creek is a first order creek (within the meaning of the Strahler stream ordering system shown at Fig 1 of the policy) of Wheeler Creek and first order creeks require a 20m wide riparian corridor, at Table 1 of the policy.

61. I accept and prefer Dr Martens’ evidence regarding the suitability of the width of the vegetated riparian zone (VRZ). Mr Shaw’s riparian buffer shown on Ex 13 extends into the valley slope into sandstone woodland and up the steep valley walls and this area is not, according to Dr Martens, necessary for the protection of the creek system and it extends beyond any existing or useful riparian area.

62. Table 1 in the policy describes a watercourse requiring a 20m riparian zone and buffer as, “any first order, watercourse and/or where there is a defined channel where water flows intermittently”. A permanently flowing first order watercourse or a second order watercourse requires a 30m riparian zone and buffer. I accept Dr Martens’ evidence that the creek is likely to be only a first order watercourse because the creek does not maintain a contiguous bed and bank characteristics on the site; the water flow was in places over the valley floor without any defined bed or bank; and in the lower portions of the site the channel appeared to be artificially created, draining to the culvert below the downslope development at 51 Willandra Road. Furthermore, both Messrs Shaw and Smith described the creek as “ephemeral” (Ex 8, p2 and oral evidence), suggesting that water flows intermittently along the creek bed. Despite the depiction of the creek on maps (Ex Y) as being a second order water course with two arms draining towards the creek that passes across the site, Dr Martens’ assessment of the creek best fits the description of a first order water course in the policy requiring a 20m VRZ.

63. According to Dr Martens, the roadway and fire trail across the creek are achieved using two culverts and he notes that the Riparian Guidelines permit any watercourse crossings over first and second order watercourses. In Mr Shaw’s opinion, the roadway and fire trail should bridge the creek, so as to allow the creek to meander. According to Mr Shaw, the existing head wall and pipe that carries the creek across the neighbouring property at 51 Little Willandra Road, Willandra Bungalows, will be reinstated as a riparian corridor in the future when the neighbouring property is redeveloped. According to Dr Martens, that is, in his experience, very unlikely.

64. I accept and prefer Dr Martens’ evidence that there is no watercourse or riparian corridor to connect immediately downstream of the site on the adjoining property at 51 Little Willandra Road, because the creek and floodplain have been filled and developed for urban residential purposes and it is very unlikely that the adjoining property will be reinstated as a riparian corridor in the foreseeable future, because Willandra Bungalows is a substantial development consisting of 28 buildings containing 88 seniors’ housing units. I accept Dr Martens’ evidence that the two culverts under the roadway and the fire trail are an appropriate solution to channel the creek, in its existing location, towards the existing head wall on the shared boundary and to allow the two roads to cross the creek.

60. The site is identified as flood affected land. According to Mr Shaw, the Council’s flood study established the Probable Maximum Flood Level (PMF) on the site at RL15.2. The Council presses for the floor levels of units LG12, LG13 and LG14 to be raised from RL14.76 to RL15.2 and for units LG15 and LG20 to be raised from RL15.0 to RL15.2. In Mr Shaw’s opinion, the FFLs of the lower ground units in Group B, below the roadway, should be raised to RL15.0, which Dr Martens noted is rounded up from his calculation of the PMF of RL14.96. Mr Shaw agreed that raising the floor levels of units LG12, LG13 and LG14 to RL14.96 is acceptable. In Mr Shaw’s opinion, the western end of the bridge over the creek should be raised from RL15.0 to RL15.2.

61. For abundant caution and because, in my view, it will effect a better urban design outcome by reducing the depth of the excavation at the western end of the proposal, I prefer Mr Shaw’s more conservative estimate of appropriate FLLs for the Group B buildings relative to the PMF Level. The Group B buildings are to be raised so that the FFL of units LG12, LG13 and LG14 are RL14.96 and units LG15 and LG20 and the basement Parking-2 are RL15.2. The western end of the bridge is to be raised to RL15.2. The raising of the Group B buildings is to be achieved in compliance with the maximum standard for height under cl 29 of LEP 2000. Condition 8(f) of Ex 9 requiring the floor levels to be set at or above the PMF Level is to be deleted.

62. I accept the agreement of the experts on Mr Shaw’s suggestion that signage and a temporary barrier should be employed to stop traffic in the event of the creek flooding and that this requirement be included in a Flood Emergency Response Plan. The Council is to add a condition to the conditions of consent requiring a Flood Emergency Response Plan to be completed by a suitably qualified consultant prior to the issue of the Occupation Certificate.

Consistency with the Desired Future Character statement for the B2 Locality

68. The Council contends that the proposal is inconsistent with the desired future character statement for the B2 Locality and does not provide for the preservation of this character.

69. I am satisfied that the proposal conforms with the housing density standards for the B2 Locality, because the maximum housing density of 1 dwelling per 20 ha of site area includes an exception for seniors’ housing development that complies with the minimum standards in cl 29 of LEP 2000 and the proposal complies with those minimum standards in cl 29. The parties agreed that the site is land that adjoins a locality primarily used for urban purposes on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of “housing for older people or people with a disability”. This permitted exception to the housing density standard for the B2 Locality means that it is not necessary for the proposal to mimic the appearance of one dwelling per 20 ha of site area. I am satisfied that the proposal is consistent with the “low intensity, low impact uses” character test because the proposal preserves, maintains and restores more than half the site as natural bushland and riparian corridor.

70. The applicant has titrated the density and form of the development, particularly the Group B buildings, with the significant constraints posed by the existence and position of the riparian corridor and its preservation and the requirement for an APZ and the consequent impact of the removal of trees on the ecological values of the site. By slightly increasing the scale of each building envelope on the western side of the creek, when compared to the building envelopes on the eastern side of the creek, the applicant has sought to achieve a reasonable development of the site while containing the western end of the development to a smaller footprint in order to preserve a significant proportion of the site as native bushland. I am satisfied that the amended proposal in Ex A as amended by Ex AA, combined with the commitments of the proposal, has successfully struck a fair balance between the reasonable development of the site for seniors’ housing and the preservation and restoration of the site’s ecological values. For this reason, I am satisfied that the bulk and scale of the Group B buildings is acceptable and consistent with the desired future character of the B2 Locality and that they have been located and grouped in an area that has minimised disturbance of vegetation and landforms and that the excavation of the site at the western end of the development will have been minimised when the ground floor FFL is raised in accordance with the directions.

Conditions

71. The Natural Resources Access Regulator (NRAR) has issued General Terms of Approval dated 21 December 2018 (Ex T) (GTAs) for this proposed development as it is Integrated Development which requires a Controlled Activity approval under the Water Management Act 2000 after consent has been granted by the consent authority and before the commencement of work. The NRAR GTAs are incorporated into the conditions of consent at condition 2.

72. The QS report values the development as amended at $7,921,730.00 (Ex Z). Condition 5 concerning the monetary contribution required under s 7.11 of the EPA Act has been amended in Ex BB to $179,217.30.

73. I accept the Council’s submission that Condition 19 of Ex 9 should be imposed, requiring an Instrument under s 88B of the Conveyancing Act1919 over the area of the site to be retained as bushland, in which Northern Beaches Council is to be named as the sole authority, binding the owners of the land to manage and protect, conserve and rehabilitate the native bushland and riparian areas of the site. The native vegetation is a distinctive feature of this site and its retention, protection and rehabilitation is a commitment of the proposal which provides an intangible public benefit. The Instrument will ensure that Council acts as the trustee of this environmental benefit.

74. I accept the evidence of Council’s urban design and planning expert that the proposal’s commitment to provide a private shuttle bus with driver to transport residents to local shopping areas should be imposed on the consent (Ex Q, p 6). The Council is to add a condition to the conditions of consent requiring a private shuttle bus with driver to transport residents to local shopping areas at regular intervals or in response to demand.

75. The agreed changes to conditions 1, 4, 9, 15, 19, 26, 37, 38, 39, 53, 59, 62, 63, 70, 79, 80, 92, 96, 102 and 108 (Ex BB) and the agreed bushfire conditions (Ex U) are to be included in the conditions of consent.

Conclusion

76. I am satisfied that the proposal minimises its impact on remnant indigenous flora including canopy trees identified as T24 and T41. I am satisfied that the proposal retains the distinctive environmental features of the site and nearby land, including environmental features such as rock outcrops, remnant bushland and watercourses and that the impact of the proposed development on habitats located on the site, which includes creeks and native species aquatic habitat, is appropriately managed and mitigated by the commitments of the proposal.

77. I am satisfied that the development is consistent with the relevant general principles of development control in Part 4 of LEP 2000 and the aims of SEPP Seniors Living.

Directions

78. The directions of the Court are:

1. The applicant is to amend the architectural and landscape plans as follows:

1. The FFLs of LG12, LG13 and LG14 are to be raised to RL14.96. The floor to ceiling height of these units and the units over is to be reduced to 2.6m, but only if necessary to comply with the height minimum standard of 8m under cl 29 of LEP 2000 when measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

2. The FFLs of LG15 and LG20 are to be raised to a minimum level of RL15.2. The finished floor levels of the units over are to be raised at least 200mm. The height is to comply with the height minimum standard of 8m under cl 29 of LEP 2000 when measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

3. The western end of the bridge over the creek is to be raised to RL15.2.

2. The amended plans at A3 are to be filed and served by 30 April 2019.

3. The conditions of consent in accordance with this judgment are to be filed 7 May 2019, including:

1. The NRAR GTAs (Exhibit T) are to be incorporated into the conditions of consent at condition 2.

2. Condition 5 of Exhibit 9 total monetary contribution is $179,217.30.

3. Condition 8(f) of Exhibit 9 requiring the floor levels to be set at or above the PMF Level is to be deleted.

4. Condition 19 of Exhibit 9 is to be retained.

5. The Council is to add a condition requiring a private shuttle bus with driver to transport residents to local shopping areas at regular intervals or in response to demand.

6. The Council is to add a condition requiring a Flood Emergency Response Plan to be completed by a suitably qualified consultant. The Flood Emergency Response Plan is to include a requirement that signage and a temporary barrier be employed to stop traffic in the event of the creek flooding.

7. Any recommendations of the Flora and Fauna Assessment (Exhibit J, p 25) not already incorporated into the Biodiversity Management Plan are to be incorporated into the amended Biodiversity Management Plan under condition 26 unless the ecology experts agree otherwise.

8. The agreed changes to conditions 1, 4, 9, 15, 19, 26, 37, 38, 39, 53, 59, 62, 63, 70, 79, 80, 92, 96, 102 and 108 (Exhibit BB) and the agreed bushfire conditions (Exhibit U) are to be included in the conditions of consent.

4. Liberty to restore on two days’ notice.

Addendum

79. The applicant filed the plans amended in accordance with the Court’s directions at [78] on 30 April 2019.

80. The respondent filed the conditions of consent amended in accordance with the Court’s directions at [78] on 17 May 2019.

81. I have considered the amended plans and conditions of consent and I am satisfied that they are consistent with the directions made and the reasons for judgment. Accordingly, I make the following orders:

Orders

82. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2017/0294 for the demolition of existing structures and the construction of a Seniors Housing Development at 53 Little Willandra Road, Oxford Falls, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 2 and L, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A 

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Amendments

10 May 2019 - Leave granted by the Commissioner to extend the filing of the conditions of consent (at [78(3)]) to 17 May 2019

28 May 2019 - Final Orders inserted

Decision last updated: 28 May 2019