MacKenzie Architects International Pty Ltd v Ku-ring-gai Council

[2022] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:

MacKenzie Architects International Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1274

Hearing dates:

Conciliation conference on 10 May 2022

Date of orders:

31 May 2022

Decision date:

31 May 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 to vary the development standard for height of buildings contained in clause 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or people with a Disability) 2004 prepared by Chapman Planning Pty Ltd dated 22 December 2021 is upheld.

(2) The appeal is upheld.

(3) Development Application DA0186/21 for the demolition of the existing garage and studio; subdivision of land to retain the heritage house; construction of 12 additional seniors living town houses and excavation and construction of basement carparking on land at 30 & 30C Shinfield Avenue and 9 Porters Lane, St Ives is determined by the grant of consent, subject to the conditions contained in the annexure marked "A".

Catchwords:

DEVELOPMENT APPLICATION – seniors living development – local heritage significance – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.7, 7.16

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Ku-ring-gai Local Environmental Plan 2015, cll 4.6, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 2A, Sched 1

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 4, 4A, 13, 18, 26, 28, 30, 31, 32, 35, 36, 38, 39, 40

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Texts Cited:

Seniors Living Policy – Urban Design Guidelines for Infill Development

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Yates Law (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2021/247255

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Ku-ring-gai Council (the Respondent) of development application DA0186/21 seeking consent for the demolition of ancillary structures and construction of 12 townhouses for seniors living at Lot 3 in DP 441438, known as 9 Porters Lane, and Lots 20 and 21 in DP 1244036, known as 30 and 30C Shinfield Avenue, St Ives (the site).

2. The matter was initially listed before me for hearing on 10 May 2022. However, prior to the commencement of the hearing, the parties advised the Court that as a consequence of amendments evident in amended plans and other documents the subject of leave granted by the Court on 3 May 2022, and further plans filed with the Court 10 May 2022, all contentions are resolved.

3. On application of the parties, the matter was reallocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act), and I presided at the conciliation conference at which the parties reached in-principle agreement on all of the matters in contention. 

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 10 May 2022.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [42].

7. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

8. The site is located within the R2 Low Density Residential zone under the Ku-ring-gai Local Environmental Plan 2015 (KLEP) in which dwelling houses and hospitals are permitted uses with consent, consistent with cl 4(1)(a) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors SEPP). Relevantly, the site is also not identified by virtue of cl 4(6) of the Seniors SEPP that would otherwise exclude application of the Seniors SEPP, and is not within a heritage conservation area pursuant to cl 4A of the Seniors SEPP.

9. Similarly, the site does not contain land identified as Terrestrial Biodiversity under cl 6.3 of the KLEP or Riparian Lands under cl 6.4 of the KLEP and therefore the Land is not excluded from the operation of the Seniors SEPP.

10. The proposed development is for ‘infill self-care housing’ and, consistent with cl 13 of the Seniors SEPP, does not propose to provide meals, cleaning services, personal care, nursing care.

11. The agreed conditions of consent impose a restriction on occupation of seniors housing consistent with cl 18(1) of the Seniors SEPP that is to be registered against the title of the property, in accordance with section 88E of the Conveyancing Act 1919.

12. On the basis of the survey plan prepared by Beveridge Williams, dated 3 September 2019, longitudinal sections dated 25 March 2022, and further surveys prepared by the same author dated 8 April 2019, and certification of the crossfalls, I am satisfied that residents of the proposed development will have access to those facilities nominated at cl 26(1) of the Seniors SEPP by a suitable access pathway, consistent with subcl 26(3), leading to two bus stops within 400m of the site in accordance with cl 26(2)(b)(i) of the Seniors SEPP 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 (subcl 26(2)(b)(ii)) at intervals consistent with subcl 26(2)(b)(iii).

13. On the basis of the Stormwater Plans prepared by Martens and Associates, dated 26 November 2021, I am also satisfied that the proposed development will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage in accordance with cl 28 of the Seniors SEPP. Relatedly, I consider the Stormwater Plans, read in conjunction with the Landscape Plans prepared by Conzept dated 9 February 2022, to also address the matters at cl 36 of the Seniors SEPP.

14. When architectural drawings A0002-0004, prepared by Mackenzie Architects International, which contain site analyses, are read in conjunction with the Statement of Environmental Effects prepared by Chapman Planning, dated 30 April 2021, I am satisfied the Applicant has explained how the design of the proposed development has regard to the site analysis, and explained how the design of the proposed development has regard to the design principles set out in Division 2 of the Seniors SEPP in accordance with cl 30 of the Seniors SEPP, and in satisfaction of cll 31 and 32 of the Seniors SEPP.

15. On the basis of architectural drawings A4001-4003, prepared by Mackenzie Architects International, adequate daylight is depicted to the main living areas of neighbours in the vicinity and adequate sunlight to substantial areas of private open space, solar heating and lighting by placement of windows to living and dining areas facing north, consistent with cl 35 of the Seniors SEPP.

16. Clause 38 of the Seniors SEPP provides design principles with respect to accessibility that are satisfactorily addressed by reference to the survey plans and certification at [12], and by reference to the Accessibility Report prepared by Sydney Access Consultants dated 9 February 2022, and the agreed conditions of consent at Condition 82B Accessibility.

17. Relatedly, I also consider Schedule 3 (Standards concerning accessibility and useability for hostels and self-contained dwellings) applies to the Land. The Proposed Development is supported by an Access Report prepared by Sydney Access Consultants dated 29 April 2021 (Class 1 Application Tab 3) and Supplementary Access Report prepared by Sydney Access Consultants dated 9 February 2022 (Notice of Motion filed 18 February 2022 Tab 2). The matters in Schedule 3 have been considered.

18. The provision of waste facilities are addressed in the Waste Management Plan prepared by Mackenzie Architects International dated 19 April 2021, in accordance with cl 39 of the Seniors SEPP.

19. Clause 40(3) of the Seniors SEPP requires a site frontage of at least 20m in width, subcl (4)(a) prescribes that the height of all buildings in the proposed development must not exceed 8m and subcl (4)(c) relevantly provides that a building located in the rear 25% area of the site must not exceed 1 storey in height.

20. As the site does not have a direct frontage to a street but is instead accessed by access handles from both Shinfield Avenue, to the south, and Porters Lane, to the north, three things are relevant:

1. Firstly, the site frontage at subcl 40(3) is measured from the building line, with which the site complies.

2. Secondly, the particular geometry of the site results in “the rear 25% area of the site” being the rear of both frontages, otherwise described as being central to the site.

3. Thirdly, a 2-storey portion of the development is located within the rear 25% of the site that represents 8% of the site area, or 256.2m².

21. As a portion of the proposal fails to comply with cl 40(4)(c) of the Seniors SEPP, being a development standard under Part 4 of the Seniors SEPP, the application relies upon a written request prepared by Chapman Planning in accordance with cl 4.6 of the KLEP.

22. I am satisfied that compliance with the standard at cl 40(4)(c) is unreasonable or unnecessary because the proposal is consistent with the objectives of the standard notwithstanding the non-compliance.

23. In the circumstances of this case, the objectives are asserted, appropriately in my view, to be derived from the Seniors Living Policy – Urban Design Guidelines for Infill Development (Seniors Living Guidelines) that are to be taken into consideration at cl 31 of the Seniors SEPP and which, at Part 4, cites the provision for single storey development in the rear 25% of a site.

24. The objectives 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”

25. In addressing the objectives, I accept the following:

1. The portion of the development that exceeds the standard is oriented internally to the site, and contains bedrooms with windows screened by louvres or glazing treated to obstruct sightlines and minimise privacy and amenity impacts.

2. The property at 7 Cresta Close, but for its garage and driveway, will not be overshadowed in mid-winter as a result of the exceedance between 9am-1pm, and the rear yard of the property will retain solar access, as demonstrated by architectural drawings A4001-4003 and A4101-4103.

3. Existing views and outlook to mature plantings and tree canopy will be retained.

4. The location of the non-compliance to the west adjoins an R4 High Density Residential zone to the north west, and adjoins an R3 Medium Residential zone to the south west, with an existing 4-5 storey residential flat building immediately adjoining the north of the site.

5. Where the proposal exceeds the standard at cl 40(4)(c), the ground floor setback to neighbouring properties is 3m and first floor setback of 6m.

26. I also accept that the following environmental planning grounds expressed in the written request are sufficient to justify the non-compliance:

1. The portion of non-compliance to the west of the site adjoins a high density residential zone with a permissible height of 17.5m, and the non-compliance to the east of the site is of a scale that is compatible with the scale of development evident in Cresta Close where a permissible height of 9.5m applies, without imposing a significant adverse impact on existing dwellings.

2. The height of Building A, located to the east of the site, is accepted by the parties as contextually appropriate to the existing single storey form of the heritage item on the site, despite the non-compliance.

3. As a consequence of the treatment to upper level windows, no adverse privacy impacts arise from the portion of non-compliance.

27. I am satisfied that the written request has adequately addressed the matters required by cl 4.6(3) of the KLEP and, for the reasons set out in the written request, I am also satisfied that the proposed development is consistent with the objectives of the standard at [24], and of the zone in which the site is located. The objectives of the R2 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.

•  To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

28. Accordingly, because it is consistent with the objectives of the standard and the zone, I am satisfied the proposed development is in the public interest. In arriving at this opinion of satisfaction I note the particular landlocked geometry of the site that results in the portion of non-compliance adjoining high density development to the west, and the garage and driveway to the east. I also consider the non-compliance in Building A to result, in part, from the fall in topography on the site, as demonstrated in the architectural elevations.

29. Having also considered those matters at cl 4.6(5) of the KLEP, I also find there are no grounds on which the power of the Court should not be exercised by reason of s 39(6) of the LEC Act and so the written request to vary the standard at cl 40(4)(c) of the Seniors SEPP should be upheld.

30. On the basis of the detailed access plans prepared by Mackenzie Architects International (Dwgs A3101-3103B), the Access Report prepared by Sydney Access Consultants dated 29 April 2021 and the supplementary Accessibility Report of the same author dated 9 February 2022, I consider the standards at Schedule 3 of the Seniors SEPP, Standards concerning accessibility and useability for hostels and self-contained dwellings, satisfactorily addressed.

Ku-ring-gai Local Environmental Plan 2015

31. As the site is identified in Schedule 5 of the KLEP as a site of local heritage significance, cl 5.10 applies. I have considered the effect of the proposed development on the heritage significance of the site and I accept the conclusions and recommendations of the Heritage Impact Statement prepared by GBA Heritage dated 16 April 2021.

32. The site is identified as class 5 Acid Sulfate Soils (ASS) on the Acid Sulphate Soils Map at cl 6.1(2) of the KLEP, however is not within 500m of any land mapped as Class 1, 2, 3 or 4 ASS. Accordingly, consent under cl 6.1(2) is not required.

33. On the basis of the recommendation contained in the Preliminary Geotechnical Assessment prepared by Martens & Associates Pty Ltd dated March 2019, and Stormwater Plans of the same author, dated 26 November 2021, I am satisfied the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, heritage item or features of the surrounding land in accordance with cl 6.2 of the KLEP.

34. Relatedly, I am also satisfied that the Stormwater Plans, and Landscape Plans prepared by Conzept dated 9 February 2022 demonstrate that the proposed development incorporates of those matters at cl 6.5(3) of the KLEP.

Biodiversity Conservation Act 2016

35. While the site is not identified on the Terrestrial Biodiversity Map at cl 6.3(2) of the KLEP, the site contains vegetation that is representative of Blue Gum High Forest (BGHF) which is listed as a critically endangered ecological community under Sch 2 of the Biodiversity Conservation Act 2016 (BC Act). A total of 0.02 hectares of BGHF is proposed to be removed.

36. I have considered the Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 31 March 2021, and I note that s 7.7(2) of the BC Act has been satisfied by the preparation of a Biodiversity Development Assessment Report authored by Keystone Ecological Pty Ltd dated 10 February 2022. I am satisfied that the proposed development is not “likely to significantly affect threatened species” and is not likely to have “serious and irreversible impacts on biodiversity values” in accordance with s 7.16 of the BC Act.

State Environmental Planning Policy No 55 – Remediation of Land

37. I have considered the history of the site contained in the Heritage Impact Statement prepared by GBA Heritage dated 16 April 2021, and I accept that the site has a post-settlement history defined by residential use and that there is no evidence to suggest contamination on the site, pursuant to cl 7 of State Environmental Planning Policy No 55 – Remediation of Land.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

38. I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 998596M_14, dated 6 April 2022) prepared by Greenview Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and cl 2A of Part 1, Schedule 1 the Environmental Planning and Assessment Regulation 2000.

Conclusion

39. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

40. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

41. The Court notes:

1. The applicant has amended the application with the agreement of Ku-ring-gai Council, as the relevant consent authority, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 to rely upon the following documents:

1. Stormwater Management Plans:

Plan No.	Drawn by	Dated
PS01-A000 (Revision K)	Martens and Associates	26/11/2021
PS01-B300 (Revision J)	Martens and Associates	26/11/2021
PS01-B310 (Revision D)	Martens and Associates	26/11/2021
PS01-E100 (Revision J)	Martens and Associates	26/11/2021
PS01-E101 (Revision L)	Martens and Associates	26/11/2021
PS01-E200 (Revision I)	Martens and Associates	26/11/2021
PS01-E600 (Revision F)	Martens and Associates	26/11/2021
PS01-E700 (Revision F)	Martens and Associates	26/11/2021

2. Landscape Drawing Plans:

Plan No.	Drawn by	Dated
LPDA-21-220 Page LP-03 Detail + specification	Conzept Landscape Architects	12/2021
LPDA-21-220 Page LP-04 Details-furniture	Conzept Landscape Architects	12/2021
LPDA-21-220 Page LP-05 Sections	Conzept Landscape Architects	12/2021

2. The Applicant has lodged the amendments to the development application on the NSW planning portal on 10 May 2022 (reference PAN-91957) to which the Respondent Council has agreed;

2. The Applicant filed a copy of the amended Development Application No. DA0186/21 on 10 May 2022.

Orders

42. The Court orders that:

1. The request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 to vary the development standard for height of buildings contained in clause 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or people with a Disability) 2004 prepared by Chapman Planning Pty Ltd dated 22 December 2021 is upheld.

2. The appeal is upheld.

3. Development Application DA0186/21 for the demolition of the existing garage and studio; subdivision of land to retain the heritage house; construction of 12 additional seniors living town houses and excavation and construction of basement carparking on land at 30 & 30C Shinfield Avenue and 9 Porters Lane, St Ives is determined by the grant of consent, subject to the conditions contained in the annexure marked "A".

…………………..

T Horton

Commissioner of the Court

Annexure A (403963, pdf)

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Decision last updated: 31 May 2022