Japara Healthcare Limited v Northern Beaches Council

[2018] NSWLEC 1670

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Japara Healthcare Limited v Northern Beaches Council [2018] NSWLEC 1670
Hearing dates:	Consent orders hearing on 13 & 14 December 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	(1)   The appeal is upheld; (2) The variations to the height, front setback and side setback development standards are approved, pursuant to cl 12(2)(b) and cl 20(1) of Warringah Local Environmental Plan 2000; (3)   Development Application No. DA2017/0237 for the demolition of the existing structures and construction of a 104 room residential care facility and ancillary facilities at 169 Forest Way, Belrose is approved, subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION: Consent orders – residential healthcare facility – inconsistency with the desired further character – access to the site – ecological impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy No 1—Development Standards Warringah Local Environmental Plan 2000 Water Management Act 2000
Category:	Principal judgment
Parties:	Japara Healthcare Limited (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: C McEwan SC with M Staunton (Applicant)   Solicitors: Pikes & Verekers Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/320651
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. The applicant, Japara Healthcare Limited, proposes the demolition of existing structures at 169 Forest Way, Belrose (the site) and the construction of a residential care facility (the proposal).

2. A development application (DA 2017/0237) for that purpose was lodged with the Northern Beaches Council on 20 March 2017. The application is made pursuant to Warringah Local Environmental Plan 2000 (LEP 2000).

3. The site consists of a single allotment located on the eastern side of Forest Way legally described as Lot 8 in DP 737255. It is rectangular in shape with two street frontages being Forest Way at the western alignment and Childs Circuit at the southern alignment. The site area is approximately 9975m².

4. Apart from an existing detached dwelling house and an internal driveway access from Forest Way, the remainder of the property is bushland except for a dilapidated tennis court on the lower slopes.

5. The site is located within bushfire prone land and intersected by a watercourse which runs from the eastern end of the rear of the site.

6. The site is about 55m wide, 119m long east−west. It slopes down moderately eastward from about RL 167m at the western Street frontage to about R145m at the eastern end beyond, which is a heavily vegetated natural gully of State Creek.

7. The site is located within an area identified as “Deferred Lands” under cl 1.3(a) of the LEP 2000. In particular, the B2 Oxford Falls Valley Locality. It is agreed that the proposal is a Category 2 – Housing for older people or people with disability and thereby permissible on the site subject to development consent.

8. The proposal is also integrated development and I accept that the requisite approvals have been given pursuant to s 91 of the Water Management Act 2000 and 100B of the Rural Fires Act 1997.

9. Because the project has a capital value of $26,529,304 the Sydney North Planning Panel was the relevant determining authority for this application. At the time the proposal was lodged, it incorporated a 5 level development containing 116 rooms (and accommodating 120 beds), basement car parking for 21 vehicles and 13 parking spaces at grade adjacent to the northern property boundary and a drop off bay to the south of the entry lobby. The design also included tree removal, landscaping and associated drainage works.

10. At all times vehicular access has been via a new vehicular access and egress point from Childs Circuit at the southern property boundary. This was because the Roads and Maritime Services (RMS), despite repeated requests from both the applicant and the Council, refused access to the development from Forest Way. In fact, the Roads Authority requires the existing vehicular access to the site from that location be removed.

11. By way of background, I note that the original DA was publically exhibited in accordance with the Environmental Planning and Assessment Act 1979 (EPA Act) and Environmental Planning and Assessment Regulation 2000 and the Council’s LEP from 31 March 2017 to 2 May 2017. Additionally, the application was advertised in the Manly Daily on 1 April 2017 and a notice about the development was placed on the site.

12. In response to the public exhibition, the Council received 48 submissions objecting to the application. I have read these submissions which have been tendered in the Council’s bundle (Exhibit 1, tab 4). Some of these objectors also gave further oral evidence at the site view yesterday. Generally speaking the objectors are concerned about;

• traffic impacts generated by an access via Childs Circuit rather from Forests Way;

• stormwater runoff/sewerage and the capacity of the existing infrastructure to accommodate the development;

• the loss of native vegetation (the Coastal Upland Swamp) and impacts on threatened species and habitat;

• the visual impact of the built form its height and bulk and scale; and

• Inconsistency with the Desired Future Character of the Locality Statement for B2 Oxford Falls Valley Character Locality Statement under the LEP 2000.

13. On 24 October 2017, the applicant exercised its right of appeal to the Court on a “deemed to have refused” basis pursuant to s 8.11 of the EPA Act.

14. An assessment of the proposal by the Sydney North Planning Panel on 9 October 2017 against the relevant planning controls found that the bulk scale built form and character sought by the proposal exceeded that envisaged for the site under the LEP 2000, particularly having regard to the visual impact and streetscape of the proposed building form and lack of landscaping provided for a development of this scale and configuration at this location. I have read that report which is located in Council’s bundle (Exhibit 1, tab 10). It recommended refusal of the DA and the application was formally refused by Sydney North Planning Panel on 30 October 2017. Although I note that the decision to refuse consent was not unanimous.

15. The reasons for refusal issued by the Panel were:

1. pursuant to s 79C (1) (a) of the EPA Act, in cl 13 of LEP 2000 (as amended), the proposed development is inconsistent with the desired future character statement for the B2 Oxford Falls Valley locality. This inconsistency includes the character of detached style housing conforming with housing density standard as set out in the LEP, low intensity and low impact uses, and the protection and enhancement of landforms and vegetation;

2. insufficient details have been provided to demonstrate that the following requirements of the LEP 2000 as amended can be achieved:

1. access provisions under cl 40, in terms of demonstrating equitable access to Forest Way;

2. clause 56 – retaining unique environmental features;

3. clause 58 – protection of existing flora;

4. clause 60 – watercourses and aquatic habitats;

5. clause 63 – landscaped open space;

6. clause 76 – management stormwater will.

16. On 21 November 2017, the matter came before the Court for a directions hearing at which time the Registrar of the Court directed that the proceedings be listed for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 on 10 April 2017.

17. The contentions raised by the Council in the proceedings included the design of the proposed development, and the development‘s consistency with the desired future character in the B2 Oxford Falls Valley locality statement which is a relevant consideration raised by cl 12(3)(b) of the LEP 2000, building envelope, protection of existing flora accessibility and based on a public interest ground the matters raised by the objectors.

18. The Council also complained about the adequacy of the information accompanying the application with respect to site including: - accessibility; land contamination; the unique environmental features; the watercourses and aquatic habitats; and the impacts of the landscaped open space on aboriginal heritage. The Council’s contentions are particularised in the SOFC dated 22 January 2018.

19. On or about 27 March 2018 before the Court conciliation conference, additional revised plans and material was provided to the Council on without prejudice basis. Following that a without prejudice meeting was held between the parties together with their urban design experts on 3 April 2018.

20. Shortly, after that meeting the Court directed and facilitated s 34 conciliation conference was held on 10 April 2018.

21. After the s 34 conciliation conferences, the applicant provided a further set of amended plans and revised material in response to the issues raised in the Council’s contentions and the matters discussed at the s 34 conference, including the matters raised by the submissions received from the public. At this time (and after the s 34 conference) the Council engaged a bushfire consultant to consider the amended plans and the revised material. On 1 June 2018, the s 34 conference was formally terminated as the parties were unable to reach full agreement on all issues in dispute at that time.

22. On 7 June 2018, a further without prejudice meeting was held between the parties’ ecologist, bushfire and stormwater experts in an endeavour to resolve outstanding matters in the proceedings.

23. On 24 July 2018, the Council received further reports and information from the applicant.

24. On 20 August 2018, the Council’s bushfire consultant inspected the site. After the site inspection, the Council’s bushfire consultant and the parties’ bushfire experts engaged in further without prejudice discussions on a number of occasions in an effort to resolve outstanding matters including the APZ.

25. The plans were further amended and the NSW Rural Fire Services (RFS) confirmed that the without prejudice amended plans were acceptable and within the terms of the bushfire safety authority previously issued by the RFS. The s100 authority was first provided on 22 August 2017. The RFS confirmed that the bushfire protection measures listed in the Bushfire Safety Authority dated 22 August 2017 remained applicable to the proposal, as amended including a requirement as indicated in Condition 6 of the RFS’s Authority that all residential care bedrooms within 100m of the APZ shall have non-open all windows.

The amended proposal

26. Based on the evidence before me, it is fair to describe the amendments to the scheme (as detailed at p 2 of the Supplementary Statement of Environment Effects prepared by the applicant’s town planner Mr Jeff Mead, and in the Schedule of Amendments prepared by the applicant’s architect attached to the affidavit of Mr Joshua Robert Palmer sworn on 5 November 2018), as being both responsive to all of the contentions and extensive.

27. Moreover, Mr Mead, Ms Gabrielle Morrish (the applicant’s urban designer) and the Council’s senior assessment planner, Ms Lashta Haidari, in the joint report (Exhibit 3) agree that all of the planning and urban design contentions are now satisfactorily resolved.

28. Their joint report concludes, in relation to contention 1. Design that the amended design is now acceptable. The report states as follows :

“CONTENTION 1. Design

i. [Although the amended] proposal incorporates five levels in part but does not appear as a five storey building from any vantage point outside the site because the lower levels are set into the landform of the site. And, this design provides a perceived height of maximum 3 storeys. The density of the proposal easily complies with the FSR control and the surrounding locality which includes medium density housing. In this context, the proposal is agreed to be compatible.

ii. the proposal will [now] provide 6,178sqm (62% of the site) as landscaped area and outside the proposed building envelope the natural landform of the site will be generally retained;

iii. the building has been located on the western portion of the site so as to minimise impacts on the most significant parts of the site in ecological terms at the eastern portion of the site;

iv. the proposal follows sound design principles that in essence seeks to “nestle” the building line into the site and generally follow the topography of the site with a high degree of modulation and articulation, using a series of large courtyards or “green fingers” to break up the building length so that where the building is close to Childs Circuit (and the north elevation), the proportions of the building that are close to the public domain have a compatible scale and character relative to the existing dwellings on the other side of the street. The amended proposal will integrate the existing and new site landscaping.

v. the site cannot be said to be within a rural setting, the recent subdivision and development on the other side of Childs Circuit has a suburban character with attached and detached, small lot 2 storey plus roof forms.

vi. the amended proposal responds to the rhythm of these dwellings by its open streetscape using a form that is similar in the frontage width of the houses and garages interspersed by the courtyards which create deep recesses between four main building forms, linked by narrow lightweight circulation zones. This form and approach enables substantial landscaping within the street frontage as well as within the courtyard areas and the northern side setback. The appearance on Childs Circuit will be of four pavilions that will reflect, or at the very least be compatible with, the built form on the southern side of Childs Circuit. In fact, the landscaped courtyards in combination with the landscaped front setback in the order of 10m or provide a stronger landscape character than the other side of Childs Circuit .

vii. the provision of seniors housing by its very nature has functional requirements that will mean that it cannot be identical as single dwellings, or other permitted uses in this zone. However, the amended plans carefully respond to the site characteristics and surrounding development to deliver a development that is compatible with inconsistent with the site context.

viii. the amended proposal will reduce the quantum of excavation by 4600sqm, from 14,700sqm as originally proposed to 10,100sqm in the amended plans. This represents a 30% reduction in the quantum of excavation when compared to only a 13% reduction in the number of rooms. The extent of cut and fill is reasonably expected for a site that falls over 16m from Forest Way to the western edge of the coastal upland swamp for a use such as this which is permissible and anticipated through the Council controls. Contrary to Particular (d) it is agreed that the proposed excavation permits the building to nestle into the site and provide a highly articulated design that contributes to the public domain while still providing a high level of amenity to the residents of the proposal.”

Desired future character

29. As already stated, the Council initially contended in relation to the original development that it was inconsistent with the Desired Future Character Statement for the 2B Oxford Falls Valley Locality and it did not adequately provide for the preservation of this character.

30. In the joint report, the planners and urban designer agreed that this contention had been resolved by the amended plans. They formed this view because they agreed that:

“CONTENTION 2. Desired Future Character

i. the proposed built form will step down the site and “nestle” into the site slope. The building is located on the western portion of the site so as to minimise the most significant parts of the site in ecological terms at the eastern portion of the site. The proposed building is a different typology to typical residential development because of its function, however at the building responds directly to the site conditions to be of low impact.

ii. the proposed built form will maintain a low profile that is designed to read 2–3 stories above the existing ground level with four pavilions (with up to 31m insets) to modulate the built form which will be compatible with the built form on the southern side of Childs Circuit;

iii. the front setback of the proposal has been almost doubled from 8m to 14m to permit the retention of the natural ground level and the establishment of a dense landscaped buffer. The building will express minimal scale to Forest Way when site fencing and landscaping are taken into account. The building will recede into a vegetative setting with maturation of the vegetation;

iv. the proposal will satisfy the Desired Future Character statement for the B2 Oxford Falls locality in that the proposal will be a “low intensity, low impact” use that will not be incongruent with the character of the locality nor have unacceptable adverse impacts on the amenity of adjoining properties;

v. the consent authority only need be satisfied that the use is low impact and low intensity and the permissible development and controls that apply must be used as a significant measure of what intensity and impact of the of use is “low.” The proposal is expressly permitted in the zone and complies with the FSR and landscape area requirements.

vi. the design of the amended proposal with its deep courtyard insets flanked by pavilions within a landscaped setting is compatible with medium density housing to the South on Childs Circuit which has a front setback of 2.3–14.5m, provide minimal separation between adjoining dwellings with little landscaping and incorporate multiple driveways.

vii. the proposal results in no adverse direct amenity impacts such as overshadowing, view loss or overlooking, being impacts which are often a measure of intensity of development.

viii. the amended proposal will increase the landscaped open space on the site by 62% of the site.”

Unsatisfactory building envelope

31. The Council had initially contended that the original proposal should be refused due to its unreasonable height, front and side boundary setbacks and building bulk. The experts now agree that:

“CONTENTION 3. Unsatisfactory Building Envelope

i. Building Height

• the amended plans reduce the overall maximum height of the development by 1.2m (from 12.6m to 11.4m) and reduces the wall height of the development by 0.6m (from 11.3m to 10.7 m);

• the departure from the building and wall height standards allow for additional rooms to be provided within the proposed residential care facility, on a smaller footprint that preserves key ecological and landscaped features of the site, without any unacceptable impact on streetscape character or amenity of neighbours;

• the site has a significant fall of 16m from the street to the rear of the allotment which is a site-specific constraint that results in particular challenges for providing a design that is both functional and strictly compliant;

• insistence on full compliance with the building wall height standards would require the redistribution of building bulk to the recessed pavilions on the lower levels. This approach would be inferior in design terms because it would reduce opportunities the landscaping, would be less compatible with the rhythm of development to the south on the opposite side of Childs Circuit and would reduce internal amenity by providing deeper floorplates with reduced solar access and cross-ventilation opportunities;

• alternatively, strict compliance would require the design to incorporate numerous level changes within each storey of the building and this is not practical or desirable for a residential care facility development;

• as far as practicable, the levels of the building have been designed to relate to the topographic characteristics of the site. A proportion of the building bulk will be contained within an area of cut and will be imperceptible from neighbouring land. This arrangement ensures that the development presents as a two to three storey structure when perceived from Childs Circuit in the neighbouring site to the north.

• the massing and arrangement of the building seeks to mitigate adverse streetscape impacts by modulating the physical bulk of the development to achieve a scale that responds to and reflects the scale of low density residential development in the locality, including on the southern side of Childs Circuit. Specifically, the extent and rhythm of deep recesses along the southern and northern elevations, in combination with upper level terraces and extensive landscaping, ensures the building has a suitable scale that does respond to the frontage length and grain of Childs Circuit, despite numerical non-compliance.

• the departure from the building height standard allows for additional rooms to be provided within the proposed residential care facility, within a smaller footprint that preserves key ecological features of the site, without any adverse impact on streetscape character or amenity of neighbours due to their significant setback from areas of the public domain where they may be perceived. The proposal therefore represents a superior planning outcome when compared to a strictly compliant development.

• the height breach does not result in any adverse privacy, solar access or view impacts.

• the amended plans demonstrate that the proposal satisfies each aspect of clause 20(1) in that the proposal is consistent with the General Principles of Development Control, is considered to be consistent with the Desired Future Character statement Locality B2 Oxford Falls Valley and has been assessed against the provisions of, and is considered to be consistent with all relevant SEPPs. The amended proposal satisfies the preconditions of clause 20(1), and the variations to the building height and wall height standards are considered to be appropriate in the circumstances;

ii. Front Building Setback

• the front setback of the proposal from Forest Way has been almost doubled from 8m to 14m to permit the retention of the natural ground level and the establishment of a dense landscaped buffer. The building will be of minimal scale viewed from Forest Way (only 1 storey and for a very limited extent of the site width) when site fencing and landscaping are taken into account;

• the front setback of the proposal from Childs Circuit has been increased from 6m to 10m for the built form with the insets set back up to 31.5m from Childs Circuit. It is only the ancillary external elements of the building which encroach to by up to 1.5m into the Childs Circuit setback area;

• the proposed built form will maintain a low profile that is designed to read as four pavilions (with up to 31m insets) to modulate the built form when viewed from Childs Circuit; and

• comparatively, the dwellings to the south of the site have a setback to Childs Circuit of 2.3-14.5m, provide little to no separation between dwellings and comprise of multiple driveways that inhibit the ability for planting trees to the size proposed in the amended scheme;

• the amended proposal will result in a good design outcome for the site that will be compatible with the front setbacks and form of surrounding buildings.

iii. Side Boundary Setback

• the amended plans will increase the building setback by 0.3m (5.7m to 6m) and provide building up to 17m in depth. The external fire stairs from the basement level is setback 5m from the northern boundary but this element is located at ground level only;

• the amended plans will permit significant and dense landscaping within the setback areas which will serve to ameliorate the visual bulk and assist in providing privacy for surrounding properties;

• the amended proposal will provide three insets which extend up to 17m from the northern boundary. The insets equate to approximately 33% of the length of each elevation;

• insistence on full compliance with the front and side setback standards would require the redistribution of building bulk to the recessed areas and the provision of a consistent side setback. Such an approach would result in a building with sub-optimal design qualities, internal amenity issues and one that is less consistent or compatible with area character; and

• the amended plans demonstrate that the proposal satisfies each aspect of clause 20(1) in that the proposal is consistent with the General Principles of Development Control, is considered to be consistent with the Desired Future Character statement for Locality B2 Oxford Falls Valley and has been assessed against the provisions of, and is considered to be consistent with all relevant SEPPs. The amended proposal satisfies the preconditions of clause 20(1) and the variations to the front and side setback standards are considered to be appropriate in the circumstances.

iv.   Building Bulk

• the bulk of the building when viewed from Forest Way will be minimal when site fencing and landscaping are taken into account;

• the building bulk as viewed from Childs Circuit is one that generally complies with the height and setback standards and is softened to a large extent by landscaping. The areas of height non-compliance are balanced out by parts of the building which are well below the height limit (as shown in the Section plans). The insets in the southern façade occupy approximately 33% of the building length and provide a high degree of horizontal modulation and the stepping in height into four primary height datum provides a high degree of vertical modulation; and

• the amended materials and colours blend with the natural surrounds as well as existing development in the locality.”

Internal amenity

32. The experts agree in the joint report that this contention has been resolved by the amended plans on the following basis:

“i. the first floor terrace and trafficable roof garden within the 100m APZ have been deleted;

ii. the amended proposal will provide 15 of the 104 rooms (14%) within the 100m APZ and therefore must have non-openable windows. These rooms will require either air conditioning or alternative mechanical ventilation to substitute for natural ventilation. This is not uncommon in contemporary urban developments, including near airports, busy roads or adjacent to commercial and industrial areas;

iii. the open communal terrace within the 100m APZ has been deleted; and

iv. only 13 of 104 (12.5%) of rooms will not have an external wall above natural ground level however, the design of the proposal with the four (4) pavilion forms will ensure all rooms will have excellent access to natural light and ventilation.

Public interest

33. The experts agree in the joint report that this contention has been resolved by the amended plans on the following basis:

i. the zoning of the site expressly permits seniors housing and the amended proposal meets the core development standards that apply being FSR and landscape controls. The proposal results in minor breaches to the height and setback requirements, however these breaches will not have an adverse impact on the amenity of adjoining properties or the character of the locality; and

ii. the amended proposal represents a reasonable balance between providing needed seniors housing developments and providing a built form that does not have any adverse impacts on the amenity of adjoining properties and is compatible with the character and built form of the locality.

34. In summary, it is fair to say that the predominant change to the design was the breaking up of the building into pavilions with large courtyards between the pavilions, together with a reduced setback to Forest Road, revised landscaping to acknowledge the remapped Coastal Upland Swamp, Endangered Ecological Community to ensure compliance with asset protection zone requirements.

35. In addition, the applicant has commissioned a revised ecological impact assessment and biodiversity management plan to ensure the proper management of the landscaped areas on the site the Coastal Upland Swamp to ensure the required bushfire and ecological outcomes are met.

36. The amended architectural and landscape drawings required consequential amendments to the stormwater design and it was also adjusted to address matters raised in the contentions in the without prejudice discussions. The end result being that there is no discharge of stormwater into Childs Circuit but rather an extensive retention tank on site with controlled release of stormwater to feed into the Coastal Upland Swamp endangered ecological community within the property. The application’s response to sewage matters has been assessed not to adversely impact on existing infrastructure servicing the local area.

37. The amended plans were notified to the earlier objectors in about 11 May 2018 (Exhibit 1, tab 13) and further objections were received by the Council to the amended plans (Exhibit 1, tab 14). I have read that material.

38. According to the Court file, the amended plans were formally substituted in the appeal by the Registrar of the Court following a hearing of a Notice of Motion in November 2018.

39. Although this matter was listed for a two-day hearing on 3 December 2018, the Council notified the objectors by letter (in accordance with the Court’s practice note) that the Council now agrees to the grant of development consent to the amended application on a conditional basis.

Consent Orders

40. The parties have filed signed consent orders to that effect with the agreed conditions of consent attached including a condition dealing with construction traffic management (Exhibit 7). They now invite me to make consent orders granting Development consent to the amended proposal subject to the agreed conditions of consent.

41. Despite the agreed position of the parties, I am required to carry out an assessment under s 4.15 the EPA Act in order to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. One of the submitters at the site view voiced a concern that the process was merely a rubberstamp. This view of the Court is unfortunate and entirely inaccurate.

42. What was apparent, however was the fact that this resident objector and many of the other residents who attended the site view and addressed the Court did not appear to fully appreciate the final details of amendments and the further information including expert assessments, which have addressed concerns raised by the panel, the Council and according to the expert evidence of matters raised by the residents.

43. A repeated concern voiced at the site view related to the necessity for the development to be accessed from Childs Circuit. As the Council’s solicitor, Mr Patterson, made plain when he spoke to this issue onsite that this access point was determined by the relevant consent authority, the RMS, contrary to the Council’s position and the desire of the applicant. The relevant legislation precludes access to a classified road where an alternate access is available as is the case at hand.

44. Despite the Council’s preference for access to the site from Forest Way it has not raised a contention about the proposed access or traffic in this case.

45. In that regard the Council accepts the evidence of the independent traffic experts engaged by the applicant, Mr Varga and Mr Hollyoak, whom have assessed traffic impacts within the site and the local roadway. Relevantly, each expert independently assessed the development to be compliant with relevant Australian standards. Moreover, they believe that the development can be accommodated on the local road system – they tested the environmental capacity of the road in accordance with the RMS Guidelines (2002) and concluded that the development would increase the peak hour traffic levels on Childs Circuit from its current 41 AM and 47 PM vehicles per peak hour to a maximum of 61 vehicles per hour AM and 67 vehicles per hour PM.

46. Mr Hollyoak was present at the site view and after hearing the objectors’ concerns gave evidence later that day in Court that the objector’s most recent submissions did not change his expert assessment that the proposal could be supported on traffic grounds. Importantly, Mr Hollyoak also confirmed, what was communicated to the residents at the site view, that he had received written confirmation from the RMS that they will permit construction access for large vehicles from Forest Way subject to a number of requirements. Noting that these requirements have now been incorporated in the Council’s agreed condition of consent.

47. Also at the site view were the parties’ ecologists, Dr Robertson and Mr Smith, both of whom confirmed that the application appropriately addressed the biodiversity and ecology issues. They agreed that the conditions accepted by the applicant ensure that the Coastal Upland Swamp on the site (which they agree is highly modified with a low number of diagnostic native species and substantial weed infestation) will be improved by this application. Although the experts acknowledged that a proportion of the mapped Coastal Upland Swamp needs to be managed as part of the asset protection zone (as mandated by the RFS) they were approving of the fact that the major portion of the Coastal Upland Swamp will be retained (825m²) and managed in accordance with the biodiversity management plan in (Cumberland Ecology, November 2018) and subject to consent conditions including ongoing protection under a s88 covenant identified on the title of the property.

48. In addition to the management of the Coastal Upland Swamp, the experts were also satisfied with the fact that the applicant has also agreed that entire areas of the swamp will be offset based on credit calculation using the New South Wales biodiversity banking assessment methodology.

49. With respect to the removal of trees on the site, which was a particular concern of some of the objectors, Dr Robertson confirmed that the conditions of consent include requirements for the project ecologist to supervise tree removal to ensure that the area is not impacted adversely. The application included relevant impact assessments addressing the requirements of the former s 5A of the EPA Act. A seven-part test under the impact assessment guidelines and the Commonwealth legislation environment protection was also carried out. The ecologists agree that the proposal will not result in a “significant” impact on the Coastal Upland Swamp or the Angus onion orchid, Microtis angusii.

50. The ecologists also agreed, based on the additional information provided by the applicant, that a Species Impact Statement was not considered necessary to further assess impacts on the threatened species as a result of the proposal.

51. With respect to watercourses and aquatic habitats, the ecologists agreed that the Stormwater Management Plan prepared by Martens and Associates dated 2018 will closely replicate natural hydrological conditions and this will protect water quality and the Coastal Upland Swamp vegetation present on the site – importantly there is not expected to be a net loss of biodiversity. Ultimately, the condition of the Coastal Upland Swamp is expected to be restored and enhanced as a result of the improved drainage.

52. The amended landscape plans prepared by Taylor Brammer dated 2018 together with the joint expert landscape report demonstrates that appropriate plantings can the provided which are commensurate with the height and scale of the development consistent with the APZ requirements on the existing soil conditions in accordance with cl 63 “Landscaped open space” of the LEP 2000.

53. In addition the ecologists also confirmed in their joint report that the requirements relating to bushfire management by the RFS, including the general terms of agreement and management of the retained vegetation on the site as specified in the BMP Cumberland Ecology Report dated 2018, are achieved by the development as now proposed.

54. At the site view, Ms Morrish confirmed that from Childs Circuit, the existing vegetation within the Council reserve of 4m and then an area of 10m beyond will be retained and the built form of the development behind that will be painted and finished with materials which will draw it into the landscape more effectively than the existing development opposite. Ultimately, the ecologists concluded that they are satisfied with the application in its amended form and said that there is no basis to refuse consent on this ground despite the matters raised by the residents at the site view.

55. As indicated above the planners are satisfied that all of the planning and design contentions have been addressed. I accept their expert assessment and give it determinative weight over that of the lay evidence expressed by the objectors in this case. While I accept that the local objectors who addressed me onsite were genuine in their belief that the development is unacceptable on several grounds – including traffic impacts the expert evidence does not support their concerns. Rather, the agreed position of all of the experts in this case is that the amended proposal satisfactorily addresses all of the Council’s contentions and those raised by the local objectors.

Jurisdictional issues raised by the WLEP

56. Clause 12(1) (a) of the WLWP requires before the grant of development consent that I am satisfied that the development is consistent with any relevant general principles of development control in Part 4. In this case Part 4 general principle at cl 40 Housing for older people or people with disabilities –is engaged.

57. The parties have agreed that equitable access to Forest Way is satisfactorily addressed by the access report dated 1 December 2018 prepared by the applicant’s consultant Mr Mark Relf filed on 12 December 2018. After having read the report I am satisfied that the development is consistent with any relevant general principle of development control in Part 4 of the WLPE (cl40) as required by cl12 (1) (a). The Council endorses the report. I do not need to say any more about this matter.

58. Clause 12 (1) (b) of the WLEP 2000 requires before the grant of consent that I am satisfied that the development is consistent with any relevant State Environmental Planning policy described in Schedule 5 (Exhibit 1, tab 15).

59. The applicant does not believe that there is any relevant SEPP in this case. Whereas the Council contends that the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. That said, the Council does not bring forward any evidence to preclude my finding that the development is consistent with the relevant provisions of SEPP 5. In those circumstances I am satisfied as required by cl 12(10 (b) of the WLEP that the development is consistent with any relevant State Environmental Planning policy described in Schedule 5.

60. Let me now deal with the other relevant provisions in cl 12 (2) of the WLEP.

61. Clause 12 (2) (b) of the WLEP requires before the grant of consent that I am satisfied that the development comply with development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.

62. In considering the relevant provisions of cl 12 I am satisfied on the basis of Mr Mead’s expert evidence in the supplementary EIS (at pp. 8-9) and the urban designer expert and Council’s planner’ evidence that the amended development will comply the development standards set out in the Locality Statement for the locality in which the development will be carried out as required by cl 12 (2) (b) WLEP with the exception of the standards in respect of height, the front setback standard to Forest way, the front setback standard to Childs Circuit or the setback to the northern boundary.

56. However, cl 20 of the LEP 2000 provides a mechanism by which development standard can be varied. It provides:

20 Can development be approved if it does not comply with a development standard?

(1)  Notwithstanding clause 12 (2) (b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.

(2)  In localities A2, A4, A5, A7, B2, B9, C8 and C10, the minimum area per dwelling required by the housing density standard is deemed to be the minimum allotment size for allotments created by subdivision.

(3)  Where consent is granted for development that does not comply with one or more development standards, the Council is to ensure that the circumstances of the case and reasons for granting consent (in such a way that does not comply with the development standards) are included in a public register of such consents.

(4)  This clause does not apply in relation to a development standard relating to maximum building height established by the Building Heights Map within the Dee Why Town Centre Locality Statement (E21).

64. In this case the applicant relies on cl 20 (1) of the WLEP to vary the development standards identified at paragraph [62].

65. With respect to the height, front setback and side boundary setback development standards in the B2 Oxford Falls Valley Locality Statement at Tab 16 of Exhibit 1, the applicant identifies that those controls are:

• maximum 8.5m building height;

• minimum front setback to forest way 20m;

• minimum front setback to child circuit of 10m;

• minimum side setback to northern boundary of 10m; and

• minimum rear setback of 10m.

(Accepting that cl 29 of the WLEP 2000 provides that I do not refuse a compliant height standard of 8m or less to ceiling).

66. Relying of the evidence of Mr Mead at pp. 10, 11, 12 13 and 14 of the supplementary EIS (reproduced below) which is endorsed by Ms Morrish and the Council’s planner, the applicant submits that:

“1.26 The building height standards applicable in Locality 82- Oxford Fails Valley and numeric compliance with these standards is visually represented in the height blanket diagram provided at Figure 5 and described at Table 1.

Table 1 Building height
Standard	Requirement	Proposed
Height measured vertically between the topmost point of the building and the natural ground level below	8.5m	11.4m
Height measured from natural ground level to the underside of the ceiling on the uppermost floor of the building	7.2m	10.7m

1.27 Clause 20(1) of WLEP 2000 provides a mechanism for varying a development standard and stipulates consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State Environmental Planning Policy.

1.28    The proposal satisfies each aspect of clause 20(1) as documented throughout this supplementary SEE and the original SEE. Specifically, the proposal is consistent with the General Principles of Development Control (refer to the Compliance Table provided in Annexure A of the original SEE, otherwise than amended by this Supplementary SEE), is considered to be consistent with the Desired Future Character statement for Locality B2 Oxford Falls Valley (refer to Section 5.2.4.1 of the original SEE) and has been assessed against the provisions of, and is considered to be consistent with all relevant State Environmental Planning Policies, including SEPP (Housing for Seniors or People with a Disability) 2004 (refer to Section 5.2.2 of the original SEE).

1.29 The site has a significant fall from the street to the rear of the allotment and it is therefore particularly challenging to design a development that is both functional and strictly compliant. To comply with the building height standard on a site such as this, it would be necessary to incorporate numerous level changes within each storey of the building and this is clearly not practical or desirable for a residential care facility development. An alternative approach would be to eliminate levels of the building however such an approach would unreasonably limit the development potential of the site, without any meaningful or necessary benefit in terms of streetscape impact.

1.30   The development consists of five levels which have, as far as practicable, been designed to relate to the topographic characteristics of the site. A portion of the building bulk will be contained within an area of cut and will be imperceptible from neighbouring land. This arrangement ensures that the development presents as a two to three storey structure when perceived from Childs Circuit and the neighbouring site to the north.

1.31    The massing and arrangement of the building seeks to mitigate adverse streetscape impacts by modulating the physical bulk of the development to achieve a scale that responds to and reflects the scale of low density residential development in the locality, including on the southern side of Childs Circuit. Specifically, the extent and rhythm of recesses along the southern and northern elevations, in combination with upper level terraces and extensive landscaping, ensures the building has a suitable scale, despite numeric non-compliance.

1.32 For the reasons described above, and noting that the proposal satisfies the preconditions of clause 20(1), a variation to the building height standard is considered to be appropriate in the circumstances. Significantly, the departure from the building height standard allows for additional rooms to be provided within the proposed residential care facility, within a smaller footprint that preserves key ecological features of the site, without any adverse impact on streetscape character or amenity of neighbours. The proposal therefore represents a superior planning outcome when compared to a strictly compliant development.

1.33 The building setback standards applicable in Locality 82- Oxford Fails Valley and numeric compliance with these standards is described at Table 2.

Table 2 Building setback
Standard	Requirement	Original DA	Amended Proposal
Front boundary setback	20m	8m	14m
Side building setback (southern boundary)	10m	5.7m – 18.6m	10m (building) 8.5m (external elements) 31.5m (inset courtyards)
Side building setback (northern boundary)	10m	5.7m – 18.2m	6m (building) 5m (external elements) 17m (inset courtyards)

“1.34    To Forest Way, the amended proposal does not comply with the setback requirements. However, the amended proposal has almost doubled the front setback from 8m to 14m. This outcome is acceptable given that the building will in effect not be readily visible from Forest Way due to the site topography dropping significantly from the level of the road. This control (which indiscernibly applies to all properties in the locality along Forest Way or Wakehurst Parkway) should be flexibly applied given the subject site circumstances. This is highlighted by the townhouses/multi dwelling houses to the south of the site (known as 1-39 Childs Circuit) which do not provide a 20m setback to Forest Way (approximate 15m setback to the boundary).

1.35 To Childs Circuit, only ancillary external elements do not comply with the southern boundary setback requirements. The amended proposal has increased the built form setback from 6m to 10m. Whilst some ancillary external elements encroach within the Childs Circuit setback area these ancillary elements do not add significant bulk and scale to the proposed development. Given the subdivision pattern, approximately 130m of the southern boundary will directly front Childs Circuit. It is calculated that a total length of 40m of ancillary external elements encroaches into the 1Om southern setback requirement, which represents 21% of the 190m southern boundary (or 30% of the 130m frontage to Childs Circuit). The amended built form will be visually recessive and modulated to present significantly less building bulk to Childs Circuit when compared to the built form of the dwellings on the southern side of the road.

1.36    To the northern boundary, the amended proposal does not comply with the setback requirements. The amended proposal does not significantly alter the original setbacks from the northern boundary with the built form setback 6-17m from the northern boundary. Ancillary external elements encroach within 5m of the northern boundary but these ancillary elements do not add significant bulk and scale to the proposed development. It is calculated that a length of 57.5m of built form will encroach into the 10m northern side setback requirement, which represents 30% of the 191.4m northern boundary.

1.37    The Particulars ignore the three large insets that increase the southern setback to over 30m (being over 20m in excess of the setback requirement) to Childs Circuit and the three large insets that increase the northern setback to 14-17m (being 4-7m in excess of the setback requirement). Therefore, on average, the proposal easily meets the setback requirements.

1.38    Clause 20(1) of WLEP 2000 provides a mechanism for varying a development standard and stipulates consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State Environmental Planning Policy.

1.39   The proposal satisfies each aspect of clause 20(1) as documented throughout this supplementary SEE and the original SEE. Specifically, the proposal is consistent with the General Principles of Development Control (refer to the Compliance Table provided Annexure A of the original SEE), is considered to be consistent with the Desired Future Character statement for Locality B2 Oxford Falls Valley (refer to Section 5.2.4.1 of the original SEE) and has been assessed against the provisions of, and is considered to be consistent with, all relevant State Environmental Planning Policies, including SEPP (Housing for Seniors or People with a Disability) 2004 (refer to Section 5.2.2 of the original SEE).

1.40   The bulk of the building is positioned down the slope and will be largely imperceptible when viewed from Forest Way. The annotated image at Figure 3 (above) demonstrates the extent of the building that will project above the level of the street.

1.41    Despite numeric non-compliance, the front setback of 14m is deep enough to accommodate and support the growth of substantial and dense landscaping. Landscaping in this location will largely conceal the building and contribute to the bushland corridor aesthetic of Forest Way.

1.42    In light of the above, it is argued that the front setback requirement is academic. That is, whether the front setback is 20m and strictly compliant or 14m as is proposed makes no tangible difference when site characteristics and landscaping is such that one will not readily perceive the structure from the street. It is fair to suggest that the large majority of people passing the site will be doing so in a vehicle moving at speed and, if they observe the building at all, they are not likely to from the view that the setback is discordant with prevailing streetscape character.

1.43    As discussed above, the amended proposal has increased the southern boundary setback to Childs Circuit to 10m while generally retaining the northern boundary setback of 6m. However, the setback extends to over 30m for Childs Circuit and 17m to the northern boundary where the recesses are proposed. As a proportion of the northern and southern side elevations, the recesses equate to approximately 33% of the length of each elevation. The building arrangement could be adjusted to achieve strict compliance with numeric setback requirements by reducing recesses and redistributing floor area however such an approach would result in a building with sub-optimal design qualities and one that is less consistent or compatible with area character.

1.44 Although non-compliant, the side setbacks proposed will allow for significant and dense landscaping which will serve to ameliorate the visual bulk of the development, and in this regard it cannot be said that the reduced side setbacks will result in a poorer landscaping outcome. In fact, the amended southern side setback of 10m from Childs Circuit is almost double the setback of the majority of dwellings on the southern side of Childs Circuit (2.3-14.5m) and comfortably meets the relevant landscaped area requirements and will therefore maximise opportunities for stormwater infiltration.

1.45    The dwelling on the adjoining site to the north is situated in the north-western portion of the site and is approximately 35m from the northern property boundary of the subject site. A driveway providing access to the cleared paddock area at the rear of the site runs adjacent to the southern property boundary. By virtue of the separation distance between the neighbouring dwelling and the proposed development, the setback to the northern side boundary is considered acceptable. A building with a setback of 6m, as is generally proposed, will have no greater visual impact than a building with a compliant setback of 10m and it allows other parts of the subject site to be entirely preserved, which has ecological benefits.

1.46 The recesses in the southern elevation create a modulated building appearance which reflects, or is at least compatible with, the rhythm of side setbacks of those dwellings opposite. The result is a streetscape appearance that reflects the built form and setback patterns already established, and is therefore appropriate regardless of minor numeric non-compliance for the ancillary eternal elements.

1.47    The proposed setbacks do not result in any adverse shadow, view, or privacy impacts on the adjoining properties to the north, south or east. The insets into the side of the building provide for a high degree of articulation and sense of "openness" for the building form as well as opportunity for additional planting along the northern and southern sides of the building.

1.48    A built form constructed at a uniform 10m from the Childs Circuit and northern elevations would have a far more significant visual impact on the setting of the locality. The proposal is a superior solution to strict compliance with the setback requirements and will permit significant opportunities for landscaping within the northern, southern and western boundaries.

1.49    For the reasons described above, and noting that the proposal satisfies the preconditions of clause 20(1), a variation to the building setback standard is considered to be acceptable in the circumstances. Significantly, the departure from the building setback standards allows for building with a greater degree of articulation and architectural appeal, without any adverse impact on streetscape character of amenity of neighbours. The proposal therefore represents a superior planning outcome when compared to a strictly compliant development.”

67. I accept the justifications for non-compliance with the development standards in this case for the reasons outlined in the supplementary EIS – noting that the variations to the development standards for height, front set back to Forest way, the front setback standard to Childs Circuit or the setback to the northern boundary are also supported by the Council’s experts in this case.

68. For the reasons outlined by Mr Mead I accept notwithstanding cl12 (2) (b) that consent can be granted to the proposed development despite the fact that the development does not comply with one or more development standards because the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy based on the evidence before me.

69. Clause 12 (3) (b) of the WLEP requires before granting consent that this Category Two development is consistent with the desired future character described in the relevant Locality statement.

70. The Desired Future Character Statement for the B2 Oxford Falls Valley Locality is at p127 of the WLEP 2000.

71. In considering cl 12 (3) (b) I am satisfied based on the joint evidence of Mr Mead and Ms Morrish and Council’s senior planner that the amended development is consistent with the Desired Future Character statement for the B2 Oxford Falls locality. The experts’ agreed evidence is summarised at paragraph [30] above. I do not need to repeat it save to note that I accept their joint view that the development will be a “low intensity, low impact” use that will not be incongruent with the character of the locality nor have unacceptable adverse impacts on the amenity of adjoining properties for the reasons they give. Ultimately, as the experts state in order to be consistent with the Desired Future Character of the relevant locality statement “the consent authority only need be satisfied that the use is low impact and low intensity and the permissible development and controls that apply must be used as a significant measure of what intensity and impact of the of use is “low.” The proposal is expressly permitted in the zone and complies with the FSR and landscape area requirements”.

72. Having been to the site and observed the southern side of Childs Circuit at the hearing I can also appreciate, as the experts suggest, how the built form will step down the site and nestle into the site slope. I also accept their assessment that the development will maintain a low profile and be read as 2-3 stories above the existing ground level with four pavilions ( with up to 31m insets ) to modulate the built form which will be compatible with the built form on the southern side of Child Circuit.

73. I am also satisfied on the evidence of the experts for the reasons articulated in the joint report that the amended design now achieves the relevant Site and Planning and Building Design Principles in Division 4 and 6 of Part 4 the WLEP which were not adequately addressed in the earlier plans.

Conclusion

74. Based on the agreed expert evidence before me, I am satisfied that the amended proposal represents a reasonable balance between providing needed seniors housing developments and providing a built from that does not have adverse impacts on the amenity of the adjoining properties and is compatible with the character of the area. As required by s 4.15 of the EPA Act, I have considered all of the evidence against the statutory framework including the objectors’ oral and written concerns and as indicated I am satisfied that any relevant contentions have been satisfactorily addressed in the amended design and the conditions of consent. For these reasons I have decided to make the orders proposed by the parties by consent.

75. The Court orders are:

1. The appeal is upheld;

2. The variations to the height, front setback and side setback development standards are approved, pursuant to cl 12(2)(b) and cl 20(1) of Warringah Local Environmental Plan 2000;

3. Development Application No. DA2017/0237 for the demolition of the existing structures and construction of a 104 room residential care facility and ancillary facilities at 169 Forest Way, Belrose is approved, subject to the conditions set out in Annexure “A”.

……………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (252 KB, pdf)

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Amendments

28 December 2018 - Corrections to typographical errors at [40], [59], [62], [73] and representation on coversheet.

Decision last updated: 28 December 2018