Jigari Pty Ltd v City of Parramatta Council

[2018] NSWLEC 1568

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jigari Pty Ltd v City of Parramatta Council [2018] NSWLEC 1568
Hearing dates:	17 – 18 October 2018
Date of orders:	30 October 2018
Decision date:	30 October 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The written request to vary standard in cl 40(4)(c) of State Environmental Planning Policy- Housing for Seniors and People with a Disability is refused. (2) The appeal is dismissed (3) Development Application No. 807/2017 for the demolition of all structures and construction of nine two storey town houses at 79 Murray Farm Road Beecroft is refused. (4) The Exhibits are returned with the exception of Exhibit A,B, P and 2.
Catchwords:	DEVELOPMENT APPEAL: two storey town house redevelopment – infill self-care housing - consistency with the character of the area - variation to standard sought – standard requires single storey development to the rear of the site – potential impacts on the visual and acoustic privacy of adjoining residential lots.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Manderrah Pty Ltd v Woollahra Municipal Council and Anor [2013] NSWLEC 1196 Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1220 Project Venture Developments v Pittwater Council (2005) NSWLEC 191 Segal and Anor v Waverley Council 64 NSWLR 177 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Hornsby Development Control Plan 2013 Seniors Living Policy: Urban Design Guideline for Infill Development
Category:	Principal judgment
Parties:	Jigari Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall and Willcox Lawyers (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/345791
Publication restriction:	No

Judgment

Nature of Appeal and Outcome

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (“the Act”) against the refusal of Development Application No. 807/2017. The application seeks consent for the demolition of all existing structures and construction of nine two storey townhouses over basement car parking. The application relies on the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP (HSPD)”). The development is proposed at 79 Murray Farm Road, Beecroft.

2. Council argues the application should be refused on the following grounds:

1. that the development is not compatible with surrounding uses, as required by SEPP (HSPD) and is inconsistent with the relevant zone objectives;

2. the development has an unacceptable impact on streetscape and is inconsistent with the design principles in SEPP (HSPD);

3. the proposed development includes two storey structures within the rear 25% if the site, contrary to the controls in SEPP (HSPD);

4. the design of the development results in unreasonable privacy impacts to adjoining properties; and

5. the construction of the development will have unacceptable impacts on trees proposed to be retained due to the encroachment of the building into the tree protection zones.

3. Following a consideration of the evidence presented and the submissions of the parties, I have determined that the application should not be approved. The development proposes two-storey development at the rear of the site, contrary to the relevant development standard that requires the rear 25% of the site to be single storey built form. As a result the threshold issue for the Courts determination is whether the requested variation should be upheld. For the reasons provided at paragraph [90] through to [95], I find that the applicants written request does not adequately establish that compliance with the development standard is unreasonable or unnecessary in the circumstances of the current case.

4. Given I am not satisfied by this threshold issue, no power is available to grant consent to the development application. As a result the appeal is dismissed and the application refused.

The site and its context

5. The subject site has an area of 1,891m² and is legally described as Lot 1 in DP 858260. The site contains a two storey detached dwelling that will be demolishes as part of the proposed development.

6. The site slopes from west to east approximately two metres over a distance of 29 metres.

7. In joint report of the planning experts they describe the existing character surrounding the subject site as follows:

“40. The existing subdivision pattern comprises lots orientated to the street in a north south direction, on both sides of Murray Farm Road. The subdivision generally comprises regular lots with frontages between 15-22m.

41. The site is a single lot of an area that is greater than the majority of lots surrounding it, as well as what would have been the original subdivision pattern. It would appear that large lots in the immediate vicinity of the site have in the past been subdivided as battle axe allotment.

42. This is evident in the lots adjoining the site to the west, which shares a common boundary with the access handle to No. 81 Murray Farm Road. The property to the east contains a dual occupancy development that appears to have been subdivided into two (2) lots. This subdivision is not typical or characteristic of the subdivision pattern and appears to be a reflection of a specific built form.

43. Lots to the south and west of the subject site and those to the south of No. 77 Murray Farm Road, through to Bingarra Road to the south, form a pocket of battle axe lots.

44. Lots in this pocket surrounding the site have a different configuration to the more regular subdivision pattern fronting the majority of Murray Farm Road in the vicinity.

45. The character of the area is one of single and two (2) storey dwellings predominantly detached – setback from the front, rear and side boundaries. All lots support a landscape setting commensurate with the fact that the lots are larger than the minimum lot size. At present, the surrounding character supports a significant scale of vegetation and large setbacks particularly to the street.

46. The siting of buildings typically address the street and have rear yards. Buildings on battle axe allotments also orient the front of their properties to the street, with the exception of 81 Murray Farm Road.

47. The area is reasonably described as a low density residential environment. It could not be said to be an area undergoing transition.

48. The majority of existing development comprises older housing stock.

49. More recent developments have occurred at 76 Murray Farm Road, opposite the site, for a single dwelling house. The dual occupancy and subdivision at 79A and 79B Murray Farm Road is not characteristic of the pattern of surrounding development.

50. As stated, there is a lot space around buildings that support landscaped area. Outbuildings, garages, etc. are at different times detached or at a lower scale than the principle residence.

51. Materials and architectural elements typical of the character include brick and pitch and tiled roofs...”

(Exhibit 6)

Planning Controls

8. The application is made pursuant to SEPP (HSPD). The proposed use is defined as “self-contained dwellings”, which is defined as:

13   Self-contained dwellings

(1) General term: “self-contained dwelling”In this Policy, a self-contained dwelling is a dwelling or part of a building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in the dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.

9. The aims of SEPP (HSPD) are:

(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.

10. SEPP(HSPD) prevails to the extent of an inconsistency with other environmental planning instruments, at cl 5(3).

11. At 13(2) SEPP (HSPD) provides a definition of “in-fill self-care housing”, which is the form of development sought by the Applicant.

In this Policy, in-fill self-care housing is seniors housing on land zoned primarily for urban purposes that consists of 2 or more self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care.

12. Despite this form of housing being prohibited in the R2 Low Density residential zone, it is permitted with consent by the operation of cl 15(a) of SEPP (HSPD). The provision states:

15   What Chapter does

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

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

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

13. A site compatibility certificate is not required for the development (refer cl 24 of SEPP (HSPD).

14. However as cl 29(2) of SEPP (HSPD) states that “a consent authority, in determining a development application to which this clause applies, must take into consideration the criteria referred to in subcll 25(5)(b)(i), (iii) and (v)”, parts of the clause remain relevant to the assessment of the application. The relevant sections of the clause are:

….

(b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria:

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

…

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

..

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

…

15. Council argues subcll 25(5)(b)(i), (ii) and (v) are not satisfied by the development.

16. A consent authority must not consent to a development application made under SEPP (HSPD) unless the consent authority is satisfied that residents of the proposal will have access to specific facilities and services. These are defined at cl 26(1) as follows:

(1)  A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(a)  shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b)  community services and recreation facilities, and

(c)  the practice of a general medical practitioner.

…

(2)  Access complies with this clause if:

…

(b)  in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development:

(i)  that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii)  that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii)  that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or…

17. Council accepts that the application meets the requirements of cl 26 at (2)(b) by the public bus service provision within 400m of the site and the application of an agreed condition which obligates the applicant to construct a footpath to the relevant bus stop from the subject site (refer Exhibit 10).

18. Part 3 of SEPP (HSPD) details specific design requirements that the Consent Authority must be satisfied are met by the proposed development to allow consent to be granted. Clause 30 requires satisfaction that the applicant has taken into account a site analysis prepared in accordance with that clause. The Respondent accepts that this clause is satisfied.

19. Clause 31 requires a consent authority to take into consideration, amongst other matter, the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development (SLP) published by the Department of Infrastructure, Planning and Natural Resources in March 2004.

20. The Respondent argues that the Court should give weight to the following sections of the SLP in determining the application:

1. Responding to Context: Analysis of Neighbourhood Character

2. Site Planning and Design: Design Principles and Better Practice

3. Impacts on Streetscape: Design Principles and Better Practice

4. Impacts on Neighbours: Design Principles and Better Practice

21. Clause 32 states that a consent authority must not consent to a development application unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the design principles set out in Division 2 of the SEPP. This provision acts as a precondition to consent.

22. Pursuant to cl 32 the Respondent argues that the applicant has not demonstrated that adequate regard has been given to the following principles in the design of the proposed development:

33   Neighbourhood amenity and streetscape

The proposed development should:

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

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

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

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

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

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

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

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

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

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

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

34   Visual and acoustic privacy

The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(a)  appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and

(b)  ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.

Note.

The Australian and New Zealand Standard entitled AS/NZS 2107–2000, Acoustics—Recommended design sound levels and reverberation times for building interiors and the Australian Standard entitled AS 3671—1989, Acoustics—Road traffic noise intrusion—Building siting and construction, published by Standards Australia, should be referred to in establishing acceptable noise levels.

…

38 Accessibility

The proposed development should:

(a) have obvious and safe pedestrian links from the site that provide access to public transport services or local facilities, and

(b) provide attractive, yet safe, environments for pedestrians and motorists with convenient access and parking for residents and visitors...

23. Part Four of SEPP (HSPD) provides development standards that must be complied with. At cl 40(1) the instrument states: “A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause”.

24. The Applicant relies on a cl 4.6 variation request which seeks a departure from cl 40(4)(c) of SEPP (HSPD). This development standard states:

(c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

25. The entirety of cl 40(4) reads:

(4) Height in zones where residential flat buildings are not permitted

If the development is proposed in a residential zone where residential flat buildings are not permitted:

(a) the height of all buildings in the proposed development must be 8 metres or less, and

Note. Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a).

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and

Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.

(c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

26. It is agreed between the parties that the development complies with the remaining development standards in this section.

27. Hornsby Local Environmental Plan 2013 (“LEP 2013”), at cl 4.6 states:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows:

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Secretary must consider:

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Secretary before granting concurrence...

28. Whilst cl 4.6 of LEP 2013 provides the ability to vary the relevant development standard, at cl 4.6(2), that capacity is subject to conditions. Clause 4.6(4) establishes the preconditions that must be satisfied before a consent authority can grant consent to a development that contravenes a development standard.

29. Section 7.2 of the Hornsby Development Control Plan 2013 (“DCP 2013”) provides guidelines for the development of land for Seniors Housing throughout the Hornsby Shire. In particular 7.2.1 addresses development for seniors housing and states:

“7.2.1 Seniors Housing

Desired Outcomes:

a. Development with a bulk, scale and intensity that is compatible with the character of the area.

Prescriptive Measures:

a. Development for seniors housing should comply with the planning controls in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (as amended).”

Public submissions

30. Assessment of the development involved public notification to the surrounding neighbourhood in accordance with DCP 2013. In response 25 submissions were received. The issues raised in these submissions can be summarised as follows:

1. concern about the destruction of an historic and significant building;

2. that the bulk and scale of the proposed development is not consistent with the surrounding character;

3. the buildings proposed within the rear 25% of the site are not single storey;

4. the appropriateness of the location and the provision of access to facilities, particularly in the absence of a formed footpath;

5. Privacy impacts to the dwelling at 81 Murray Farm Road from the orientation of the dwellings and the potential for overlooking;

6. Concern about the noise and amenity impacts during construction;

7. Potential impacts to structures on adjoining land arising from the basement car park excavation;

8. Concern in regards to the removal of three large turpentine trees as part of the proposed development;

9. Impact of the development on street parking and increased vehicular movements in Murray Farm Road;

10. That there is insufficient justification to uphold a variation to the standard that requires single storey development at the rear of the site.

Expert Evidence

31. The Court heard expert landscape/ arboriculture evidence from Mr. Glendenning, for the applicant, and Mr. Rueegger for the Council. Prior to the hearing the experts participated in a joint conferencing process which sought to address the issues in contention. Following the conferencing process, they prepared a joint expert report that was tendered as Exhibit 9.

32. During the hearing these experts were cross examined in relation to the impact of the proposed development on the viability of existing trees at the rear of the subject site. The existing trees are proposed to be retained by the Applicant. Submissions were also made in relation to the varied weight the Court should give the experts evidence on the basis of their qualifications and experience. Due my findings on the threshold issue in this matter it has not been necessary to determine these areas of dispute between the parties.

33. The Court heard expert planning evidence from Mr. Glendenning, for the applicant, and Ms McCabe for the Council. Prior to the hearing the experts participated in a joint conferencing process which sought to address the issues in contention. Following the conferencing process, they prepared a joint expert report that was tendered as Exhibit 6.

34. Further reports were prepared by experts in the areas of Accessibility, Traffic and Engineering, Exhibit 5, 7, and 8 respectively. Due my findings on the threshold issue in this matter it has not been necessary to detail the areas of agreement or dispute between these experts.

The issues

35. The parties agree that the appropriate approach to the assessment of the application is for the Court to:

1. Determine whether it can be satisfied that the requested variation to the provisions of cl 40(4)(c) of SEPP (HSPD) should be upheld;

2. Consider whether the development is compatible with the character of the locality (cl 29(2) of SEPP (HSPD);

3. Consider whether the proposed development demonstrates that appropriate regard has been had to the Design Principles (cl 32 of SEPP (HSPD);

4. Determine whether, following a merit assessment of the application under cl 4.15 of the Act it warrants approval.

Assessment of the requested variation

36. The Applicant seeks to vary the development standard of cl 40(4)(c) of SEPP (HSPD) (refer to par [24]).

37. The submitted variation request details the extent of variation as follows:

“The proposed development has an encroachment into the building height requirements for Building 2 being the provision of bedrooms, a bathroom and a stairway which will exceed (the) 1-storey (control), with this area being designed to be within the roof form of Dwellings 7, 8 & 9.”

(Exhibit P)

38. In the joint expert report of the planners Ms McCabe further details the extent of variation as follows:

“83. The rear 25% of the site is within 16.5 to 16.9 metres of the rear boundary. Units 7, 8 and 9 are located in the rear 25% of the site.

84. Clause 3(2) provides that for the purpose of calculating a storey, a carpark that does not extend above ground level by more than 1 metre is not to be counted as a storey.

85. A storey is not specifically defined in the SEPP (HSPD) 2004.

86. Under the HLEP 2013, a storey is defined as follows:

“Storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include:

(a) A space that contains only a lift shaft, stairway or meter room; or

(b) A mezzanine; or

(c) An attic.”

87. Under the HLEP 2013, an attic is defined as:

“Any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.”

88. The gable ends of the building and gable type dormer windows mean that the building containing Units 7, 8 and 9 comprises two (2) storeys.”

(Exhibit 6)

39. The Applicant does not contest that Units 7,8 and 9 are two storey.

40. The onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility in applying the standard, at cl 40(4)(c) of SEPP (HSPD), that requires single storey development in the rear 25% of the site: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (“Initial Action”). The Applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

“- that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

- that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b))."

41. The Court, on appeal, must form a “positive opinion of satisfaction” that the Applicant’s written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

Whether compliance with the development standard is unreasonable or unnecessary

42. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (“Wehbe”).

43. Namely, that:

1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);

2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2);

3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);

4. that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or

5. that the zoning of the land is unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (Wehbe test 4).

44. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).

45. In this appeal, the Applicant appears to utilise Wehbe test 1: namely that the objectives of the standard and the zone are achieved by the proposed development, notwithstanding the variation.

Objectives of the zone:

46. The objectives of the zone R2 Low Density Residential Zone are:

• to provide for the housing needs of the community within a low density residential environment

• to enable other land uses that provide facilities or services to meet the day to day needs of residents.

47. I note that the written request erroneously includes a third zone objective, namely:

• to provide for housing that is compatible with the existing environmental and built character of Hornsby.

48. A review of the gazetted instrument in force at the time of the lodgement of the development application confirms this objective was not incorporated in the instrument at that time, or within subsequent amendments.

49. The written request argues that the development meets the objectives of the R2 Low Density Residential zone on the following grounds:

“- the proposal will provide for additional housing stock in the locality. The site is capable of supporting town houses as proposed.

- the proposal is considered to meet the compatibility test being an appropriate development at this location.

- the development complies with the landscape requirements of Councils policy.

- the proposal has generous setbacks to all site boundaries.

- The proposal has given appropriate consideration to its setting within a Heritage Conservation Area.

- The floor space is provided at 0.5:1.”

50. I note that the above reference to the site as being contained within a Heritage Conservation Area is incorrect.

51. In their Statement of Facts and Contentions (Exhibit 2) the Council argues that “the scale of the proposed development is inconsistent with the surrounding low density residential development along Murray Farm Road and adjoining areas which comprises (development) of one and two storey dwelling houses”.

52. The planning experts agree that the “area is reasonably described as a low density residential environment” and that “it could not be said to be an area in transition” (Exhibit 6).

53. In their joint report the planning experts address the consistency of the development with the zone objectives. In their report they agree that consistency with the zone objectives, and the assessment of the development against the provisions of cl 29(2) and subcll 25(5)(b)(i) and (v) “are essentially an assessment of whether the development is compatible with the existing and future character of an area – in other words, does the development respond to its context, contribute to the overall character of an area – essentially does it result in a good “neighbourhood fit” (Exhibit 6).

54. The expert’s note that the planning principles adopted in Project Venture Developments v Pittwater Council (2005) NSWLEC 191 (“Project Venture”), used to determine whether a proposal is compatible with its context, are relevant to the current application.

55. Further they agree that, outside of the current application, “… the maximum development potential of the site would be in the form of three (3) two storey houses, depending on the configuration of the subdivision layout”. The applicant has also prepared, in Exhibit R, a comparison of the existing developments building envelope against the form of residential housing possible through complying development.

56. The planners argue that a consideration of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 are relevant to the consideration of what is possible under the planning controls in a ‘low density residential environment’, and therefore whether the proposed development is compatible with the zone objective to: “provide for the housing needs of the community in a low density residential environment”.

57. Ms McCabe argues the development is inconsistent with the objectives of the zone on the following grounds:

“98. … the maximum development under HELP 2013 is between two (2) and three (3) lots, supporting two (2) or three (3) dwelling houses.

99. The configuration and form of this type of development is very different to nine (9) two (2) storey townhouses. While seniors living is clearly a type of housing that is needed in an area, it is not in its current form being provided within a low density environment.

100.The subdivision controls and height controls in this context are the determinant of what a low density environment means in this context. That is one (1) dwelling per 500m2 at a maximum of two (2) storeys. Nine (9) dwellings represent a density in the order of one (1) dwelling per 210 m2 .”

(Exhibit 6)

58. Further to the variation request, in the joint report Mr Glendenning argues that “the SEPP overrides the provisions of the local LEP and allows (for) the development of aged persons housing”. Further he argues:

“108. “The proposed development has a minor encroachment of this building height control by incorporating floor space in the roof form by the inclusion of a bedroom, bathroom & stairway for dwellings 7,8 & 9. This form of development in this location is considered to be entirely compatible. From the rear and side elevations, Dwellings 7, 8 and 9 present as a single storey development.

109.It is proposed to increase the rear setback by 1.5m for the purpose of retention & maintenance of trees along rear boundary. The actual setback to the first floor level is 7.5m. The development outcome in my opinion would be acceptable and consistent with the general form of building in the locality.

..

122 IG says that the development is low scale, low impact with very generous side and rear boundary setbacks. The massing is reduced (by) the articulation and variation in roof forms.”

(Exhibit 6)

Objective of the Standard

59. The development standard at cl 40(4)(c) of SEPP (HSPD) does not have specific written objectives within the instrument.

60. Notwithstanding the lack of enunciated objectives, the written request argues that the development meets the objectives of the standard on the following grounds:

“The objectives of Clause 40(4)(c) establish minimum sizes and building heights for buildings under SEPP SL. The Seniors Living Policy – Urban Design Guidelines provides some assistance in determining the objectives of this clause and in particular it provides that:

- Locate the bulk of development towards the front of the site to maximise the number of dwellings with frontage to a public street.

- Parts of the development towards the rear of the site should be more modest in scale to limit the impacts on adjoining properties.

In this case, it is considered that the breach of the policy is minor and has no detrimental impact to the adjoining properties.

- Protect neighbour amenities by carefully designing the bulk and scale of the new development

- Designing second storeys to reduce over-shadowing and over-looking of neighbouring properties

- Setting upper storeys behind the side or rear boundary

In this case it is considered that the breach is minor and has no detrimental impact to the adjoining properties. The above objectives are considered to be satisfied by the design of the upper floor being recessed into the roof form. The relocation of the floor space to this level enables improved setbacks from the side boundaries and a better presentation when viewed from the adjoining properties.”

(Exhibit P)

61. In the joint report Ms McCabe proposes a contextual approach to the determination of the underlying objective of cl 40(4)(c).

“90. While the standard does not contain an objective, I am of the view that the purpose of the control is to provide for an appropriate scale of built forms at the rear of the site, to respond to the fact that areas that do not permit RFB are typically of a lower density, and the control is to address the potential inconsistency in terms of built form relationships – the rear of sites being typical backyards, with few if any structures.

91. In this case the siting of this building is essentially in the rear yard of No. 79A and 79B Murray Farm Road, the side yard of No. 81 Murray Farm Road and the rear yards of No. 45A and No. 51 Bingara Road.

92. No. 45A Bingara Road supports a single storey garage that appears to be located 2.5 metres from the boundary.

93. The building is too close to the trees along the rear of the site, which provide an important landscape setting.

94. When compared against a development that complies with the standard, the building results in a greater built form and sited to common boundaries that support few structures.

…

101.While there are no specific objectives to the standard, in the SEPP, the Seniors Living Policy – Urban Design Guidelines for Infill Development at page 6 under Design Principles and Better Practice under Built Form read as follows:

• Locate the bulk of development towards the front of the site to maximize the number of dwellings with frontage to a public street.

• Parts of the development towards the rear of the site should be more modest in scale to limit the impacts on adjoining properties.”

(Exhibit 6)

62. Applying this underlying objective, “to provide an appropriate scale of built forms at the rear of the site”, Ms McCabe concludes:

“56. The siting and length of the development along the lot is the key feature of the development that results in a building typology that is antipathetic to the surrounding character.

57. The building comprises approximately 40.5 metres of unbroken length. The built form extends some 50 plus metres down the site.

58. This results in a two (2) storey structure in the rear yard that is not compatible with the rear yards adjoining.

59. The siting and configuration of the building results in the principle open space and living areas being orientated to the side boundaries adjoining a single dwelling house.

60. The scale relationship of the building at the rear are:

• Reduced level (RL) of 119.75;

• Dwelling at No. 81 Murray Farm Road has a ridge of RL of 115.01;

• There is no corresponding structure in the rear yard of No. 79AMurray Farm Road. The building protrudes 14.5 metres past the alignment of No. 79A Murray Farm Road;

• The dwelling in the rear of 45A and 51 Bingarra Road at two (2) storeys are setback from the rear boundary with landscape between the buildings; and

• There is a single storey weatherboard shed approximately 2.5 metres from the rear boundary in No. 45A Bingarra Road.

…

63. Adopting a typology typical of a townhouse form for the site, orientating Units 3, 4, 5 and 6 to side boundaries and providing only a 2 metre separation between the two (2) building forms on the site, results in a development, of a two (2) storey scale, that is not compatible with either the existing or future character, principally because the massing of the development.”

(Exhibit 6)

63. Ms McCabe concludes that, in her assessment,: “Compliance with the standard is not unreasonable or unnecessary given the context of the site and the unconstrained site characteristics” (Exhibit 6).

64. In the joint report Mr Glendenning argues:

“108. The proposed development has a minor encroachment of this building height control by incorporating floor space in the roof form by the inclusion of a bedroom, bathroom & stairway for dwellings 7, 8 & 9. This form of development in this location is considered entirely compatible. From the rear and side elevations, dwellings 7, 8 & 9 present as a single storey development.”

(Exhibit 6)

Are their sufficient Environmental Planning grounds:

65. The written request argues that there are sufficient environmental planning grounds to justify contravening the development standard on the following grounds:

“• Buildings having Dwellings 7,8, & 9 is (sic) sited and designed so as to comply with the Council’s building height envelope provisions;

• The proposal easily complies with the Council’s building height controls which allows a building height of 9.5m

• The use of the roof form to provide additional floor space enables an improved landscape setting.

• There are no unacceptable overlooking or shadow impacts caused by the design of the new building.

Having regard to the above it is considered that there are sufficient environmental planning grounds to justify a variation to the development standard with respect to the building height control.”

(Exhibit P)

66. In the joint report Ms McCabe reviews the preceding environmental planning grounds proposed by the applicant and concludes: “Given the relationship of the proposed building to surrounding built forms and the density of the proposed development, I am not satisfied that these are sufficient environmental planning outcomes to justify a variation to the development standard” (Exhibit 6).

Consideration and Findings

The written request

67. I accept the submission of Mr Seton that I must be satisfied by the material in the written request in order to form the requisite opinion of satisfaction that: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and that there are sufficient environmental planning grounds to justify contravening the development standard. This is clear from the wording of cl 4.6(3), and the decision of the Court in Initial Action.

68. Despite the submissions of Mr Kondilios that there are other grounds that may support the applicants case for the variation, I am satisfied it is not open to me to consider these.

The likely form of development envisaged by the Planning Instruments

69. I accept the evidence of Mr Glendenning that SEPP (HSPD) allows a form of development that is otherwise prohibited and this factor should be given weight in considering the consistency of the development with the zone objectives, for at least the reason that this form of development may influence the future character of Murray Farm Road.

70. I am satisfied that consistency in the context of assessing the development against the zone objectives means: ‘agreeing or concordant’, ‘compatible’, ‘not self-imposed or self-contradictory’ (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).

71. In considering the compatibility of the development with the zone objectives I am satisfied it is appropriate to give weight to the permissible uses in the zone in determining whether the development is consistent with the “provision of housing within a low density residential environment”. Under LEP 2013 the following uses are permitted with consent:

Boarding houses; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dwelling houses; Educational establishments; Emergency services facilities; Exhibition homes; Flood mitigation works; Group homes; Home-based child care; Home businesses; Information and education facilities; Places of public worship; Public administration buildings; Recreation areas; Recreation facilities (outdoor); Respite day care centres; Roads; Tourist and visitor accommodation; Veterinary hospitals; Water reticulation systems (emphasis added)

72. The diversity of uses permitted gives effect to the second zone objective: “to enable other land uses that provide facilities or services to meet the day to day needs of residents”.

73. Whilst other uses may be possible in the R2 Low Density zone in addition to the zone table through the operation of other environmental planning instruments, such as SEPP (HSPD), I am satisfied these uses are unlikely to form a majority of the residential environment.

74. In relation to development for the purposes of “self-care infill housing” this is especially the case given the site criteria at cl 40 of SEPP (HSPD). This provision contains development standards which include that a site must have a minimum land area of 1000 square meters and a frontage of 20m. This large lot size, and frontage, is not characteristic of the subdivision pattern in proximity to the site.

75. Further LEP2013, at cl 4.3, mandates a maximum height limit of 8.5m. These controls and those in DCP 2013 are informative in determining the likely character envisaged by the low density residential environment.

76. I accept the agreed evidence of the planners that it is appropriate to consider the principles in Project Venture in assessing the compatibility of the development with the zone objectives. I note that at [26] that decision states:

“For a new development to be visually compatible with its context it should contain or at least respond to the essential elements that make up the character of the surrounding urban environment…The most important contribution to urban character is the relationship of built form to surrounding space, a relationship that is created by a building height, setback and landscape.”

77. Following consideration of the preceding and the planning principle, I adopt Ms McCabe’s reasoning, detailed at paragraph [57], and conclude that the proposed development is not consistent with the objectives of the R2 Low Density Residential Zone. The experts identified and detailed the elements of the existing character in their joint report, reproduced at paragraph [7]. I am satisfied that the development fails to respond to these elements of the character of development Murray Farm Road in proximity of the site.

78. I find that the development is of an architectural form, orientation within the site, height and setback that is not compatible with the existing streetscape. Further the presentation of the development to the street is uncharacteristic and of a site coverage that fails to respond to the prevalence of a “landscape setting”, noted and agreed to by the experts, as part of the existing character.

79. Further I concur with Ms McCabe’s conclusion that:

“63. Adopting a typology typical of a townhouse form for the site, orienting units 3, 4, 5, and 6 to the side boundaries and providing only a 2 metre separation between the two (2) building forms on the site, results in a development, of two (2) storey scale, that is not compatible with either the existing or future character, principally because (of) the massing of the development. “

(Exhibit 6)

80. Pursuant to cl 4.6 (4)(a)(ii), I find the proposed development is not compatible with the zone objectives.

What is the objective of the standard at cl 40(4)?

81. In addition to the evidence of the experts and the submissions of the parties I have given consideration to how the Court has previously interpreted the underlying purpose of the standard at cl 40(4) of SEPP (HSPD).

82. The decision of the Court of Appeal in Segal and Anor v Waverley Council 64 NSWLR 177 identifies the desirability for consistency in the application of planning principles, or in this case the interpretation of legislation, notwithstanding that the application of the same principal may result in varied outcomes dependant on the facts of the case.

83. The particular standard relevant to these proceedings has only been considered in a small number of cases. Tuor C in Manderrah Pty Ltd v Woollahra Municipal Council and Anor [2013] NSWLEC 1196 at [70] concludes that:

“The primary objective of cl 40(4)(c) is to limit the bulk and scale of a building to protect the amenity of the rear of adjoining properties.”

84. In reaching that conclusion Tuor C accepts the evidence of the town planners that an earlier decision of the Court: De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019 at [60]; that concludes that the underlying purpose of the standard in cl 40(a) is:

“to provide a development that will be compatible with the adjoining residential area and not create adverse impacts having regard to the desirable elements of the location and character of the area.”

85. In Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1220 at [47] Tuor C adopts the evidence of the applicants town planning expert that the objectives from the SLP are relevant to determining the underlying objectives of the subclauses of cl 40(4) of SEPP (HSPD). She concludes these objectives are relevant to the consideration of the variation to the standards in cl 40 of SEPP (HSPD). The objectives of the SLP she relies on are:

- to minimise impacts on the privacy and amenity of existing neighbouring dwellings,

- to minimise overshadowing of existing dwellings and private open space by new dwellings,

- to retain neighbours’ views and outlook to existing mature planting and tree canopy,

- to reduce the apparent bulk of development and its impact on neighbouring properties,

- to provide adequate building separation.

86. Given the consistency of this line of reasoning with the evidence of Ms McCabe I am persuaded to accept Ms McCabe’s assessment of the underlying objective of cl 40 in SEPP (HSPD) and her conclusion that:

“.. the purpose of the control is to provide an appropriate scale of built forms at the rear of the site, to respond to the fact that areas that do not permit RFB (residential flat buildings) are typically of a lower density, and the control is to address the potential inconsistency in terms of built form relationships- the rear of sites being typically backyards with few if any structures.”

(Exhibit 6)

87. I am satisfied that in drafting of the clause that the operation of the instrument is restrained in terms of the development intensity permitted to reflect the scale of permissible uses in the zone. For example at cl 40(4) the SEPP differentiates between development where a residential flat building is permissible and the current proceedings where in LEP 2013 such a use is not permitted in the R2 Low Density Residential zone.

88. Relevant to these proceedings that differentiation at subcl (c) is that the rear portion of such development is required to be single storey. I am satisfied that this modulation is seeking to ensure compatibility of what is an otherwise prohibited use in areas of existing low density development.

Is the development compatible with the objective of the standard?

89. The written request provides scant reasoning as to how the proposed development achieves consistency with the objectives of the standard despite the variation sought. Taking that reasoning in the order presented in the written request, I conclude as follows:

1. The form of development detailed in Exhibit B, does not “locate the bulk of the development towards the front of the site to maximise the number of dwellings with frontage to a public street” as the variation seeks to argue. In fact only two of nine units have frontage to Murray Farm Road, the remaining units have frontage internally to the development;

2. I am not satisfied that Units 7 8 and 9 are “modest in scale”, “limit impacts on adjoining neighbours” or “protect neighbour amenity” as asserted in the variation request. I find that the scale relationship of these buildings within the site, and to the adjoining properties, is not modest or of assistance in reducing the apparent bulk of development. These impacts in part arise from the variation sought.

3. In preferring the evidence of Ms McCabe I am satisfied that the extracts of the SLP relied on by the applicant (refer paragraph [49]) in support of the variation are not in fact achieved by the proposed development.

90. I am not persuaded that the grounds argued by the variation request adequately establish that compliance with the development standard is unreasonable or unnecessary on the basis that the objectives of the standard are achieved, notwithstanding non‐compliance with the standard.

91. Pursuant to cl 4.6 (4)(a)(ii), I find the proposed development is not compatible objectives of the standard.

92. As noted at paragraph [45] the applicant seeks to establish that compliance with the standard is unreasonable or unnecessary on the basis that the objectives of the controls are achieved notwithstanding the variation (Whebe test 1).

93. Given my findings at paragraph [80] and [91] I am unable to form a “positive opinion of satisfaction” that the Applicant’s written request has adequately addressed the matters in cl 4.6(3) of LEP 2013 as I am not persuaded that the objectives of the standard are achieved and it is not necessary to determine if there are sufficient environmental planning grounds to justify the variation.

94. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the standard at cl 40(4)(c) of SEPP (HSPD) and the application must fail.

Other contentions:

95. Having found that the standard should not be varied the development application must be refused. Consequently, it is not necessary to deal with the other contentions in the proceedings.

Orders:

96. The Court orders that:

1. The written request to vary standard in cl 40(4)(c) of State Environmental Planning Policy- Housing for Seniors and People with a Disability is refused.

2. The appeal is dismissed

3. Development Application No. 807/2017 for the demolition of all structures and construction of nine two storey town houses at 79 Murray Farm Road Beecroft is refused.

4. The Exhibits are returned with the exception of Exhibit A,B, P and 2.

…………….

D M Dickson

Commissioner of the Court

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Decision last updated: 30 October 2018