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

[2020] NSWLEC 1540

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1540

Hearing dates:

14-16 September and 7 October 2020

Date of orders:

09 November 2020

Decision date:

09 November 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders:

(1) The Applicant is granted leave to amend the application to rely on the amended plans marked Exhibit A.

(2) The Applicant is to pay the Respondent $8000.00 within 30 days of the date of these orders, being the agreed amount for those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) The appeal is dismissed.

(4) Development Application No. 86/19 for the demolition of ancillary structures and adaption of an existing dwelling into two seniors living dwellings and construction of fifteen new seniors living dwellings, at 9 Porters Lane and 30 and 30C Shinfield Avenue, St Ives, is refused.

(5) The exhibits, other than exhibits 1, A and K, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Seniors housing development – local heritage item – impact on the heritage significance of the heritage item – contravention of the accessibility standards for self-contained dwellings in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979

Ku-ring-gai Local Environmental Plan (Local Centres) 2012

Land and Environment Court Act 1979

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

Cases Cited:

Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73

Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Texts Cited:

Ku-ring-gai Local Centres Development Control Plan 2012

Seniors Living Policy

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
A Pickles SC (Applicant)
R O’Gorman-Hughes (Respondent)

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

File Number(s):

2019/173339

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 86/19 for the demolition of ancillary structures and adaptation of an existing dwelling into two seniors housing dwellings, and construction of 15 new seniors housing dwellings, basement parking and associated landscaping (the amended proposal) at 9 Porters Lane and 30 and 30C Shinfield Avenue, St Ives (the site) by Ku-ring-gai Council (the Council).

2. The application for a seniors housing development is made pursuant to Chapter 3 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP).

3. The appeal was subject to conciliation on 3 February 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference. I viewed the site in the company of the representatives and their experts, and I heard from the resident objectors, at the commencement of the conciliation conference onsite. As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

4. The hearing was conducted via Microsoft Teams. One resident objector gave evidence at the commencement of the hearing.

5. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the development application to rely on an amended proposal (Ex A). The parties agreed that the amendments made to the proposal, when compared to the proposal for which leave was granted by the Court on 1 April 2020, were not minor within the meaning of s 8.15(3) of the EPA Act and that the applicant would pay the Council $8000 for those costs of the Council that have been thrown away as a result of the amendment of the application for development consent.

6. The Council pressed for the notification of the amended proposal because the amendments to the proposal included reducing the eastern side setback of the building footprint of Building B, potentially resulting in greater amenity impacts on existing development to the east of the site. I accepted the submissions of the Council in relation to the renotification of the proposal and the hearing was adjourned on 16 September 2020 to allow for the amended proposal to be renotified to affected resident objectors for 14 days. The hearing resumed on 7 October 2020 following the renotification of the amended proposal. Nine submissions were received in relation to the amended proposal (Ex 14). The objections in those submissions can be summarised as follows:

• The amended proposal is an overdevelopment of the site;

• There is no parking shown for support services;

• The changes to the plans do not address the concerns raised in previous submissions;

• The removal of trees will impact on the privacy of adjoining properties;

• The amended proposal will have a detrimental impact on the traffic using Porters Lane;

• The amended proposal is an inappropriate design response to the constraints of the site;

• Six units will have a direct line of sight into the outdoor dining area of 30A Shinfield Ave which will have an unacceptable impact on visual privacy in the private open space of 30A Shinfield Ave;

• The amended proposal will unreasonably increase the overshadowing of 30A Shinfield Ave to the south of the site;

• Construction of the amended proposal will have an unacceptable amenity impact on neighbours.

Issues

7. The Council’s principal contentions regarding the amended proposal can be summarised as:

• The amended proposal will have unacceptable impacts on the heritage values of the heritage item;

• The amended proposal fails to comply with the standards set out in Pts 1 and 2 of Sch 3 to the Seniors Housing SEPP, including cll 9, 10 and 17 (the accessibility standards);

• The amended proposal fails to satisfy the development standard at cl 40(4)(c) of the Seniors Housing SEPP requiring the proposal to be a maximum of one storey in the rear 25% of the site;

• The amended proposal results in unacceptable amenity impacts on adjoining properties, particularly 7 Cresta Close, St Ives;

• The design quality of the amended proposal is inadequate;

• The amended proposal fails to recognise, identify and respond the location’s current (and future desired) character, desirable features and specific sensitivities, as required by cl 33 of Seniors Housing SEPP.

The site and the existing dwelling

8. The site consists of 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 has a total area of 5,449sqm. The site has access handles from Porters Lane to the north and Shinfield Avenue to the south. The site falls from north to south.

9. 9 Porters Lane is accessed via an access handle from Porters Lane on the north-eastern corner of the site.

10. 9 Porters Lane was purchased by the Burrows family in 1956 (Ex 6, tab 9, p 8). William Burrows was an architect and designed the original house and later extensions. William Burrows had worked in the office of Sydney Ancher as a student and was a partner in the architectural firms Meldrum Burrows, and Bowe and Burrows (Ex 8, tab 3, f 60). The house was constructed in 1957 in the post-war ‘International Style’ of architecture, with steel framing, brick infill panels, curtain wall glazing and a flat roof. The garage is on the eastern side of the house and separated by a courtyard. The house was extended in 1963, 1974 and the 1980s. The extensions to the house “were designed by William Burrows to be consistent with the original design theme and intent” (Ex 8, tab 3, f 60). The house was renovated by a new owner in 2014.

11. The original and subsequent changes to the layout of the property at 9 Porters Lane were highly responsive to the constraints and opportunities of the battle-axe lot of 9 Porters Lane. The dwelling is sited on the southern side of the allotment in order to consolidate the large garden area on the northern side of the house. “The original building was designed as an integral component of its larger landscape” (Ex 8, tab 3, f 60). The spatial layout and design of the dwelling took full advantage of its ideal orientation, outlook and visual privacy with extensive use of glass walls.

12. The house was identified as being of architectural significance by the ‘Heritage Study of the Municipality of Ku-ring-gai’ survey (undated, Ex 8, tab 3), which includes, under ‘References’, “McKay Boyd et al” (a reference to the inclusion of the house in ‘Living and Partly Living Housing in Australia’ by Ian McKay, Robin Boyd, High Stretton and John Mant, published in 1971).

13. 30 and 30C Shinfield Avenue are accessed via an access handle from Shinfield Avenue to the south of the site. 30 and 30C Shinfield Avenue originally formed the rear portion of a property fronting Rosedale Road to the west and the Rosedale Road property was subdivided in c1962 (Ex M). 30 and 30C Shinfield Avenue are vacant.

14. The site is surrounded by development, including a residential flat building fronting Porters Lane to the north, a residential flat building fronting Rosedale Road to the west, dwellings fronting Shinfield Avenue to the south and dwellings fanning around and fronting the dead-end of the cul-de-sac Cresta Close to the east. 7 Cresta Close, which is an approximately triangular allotment at the end of Cresta Close, shares its rear boundary with the middle section of the eastern boundary of the site.

15. The site is approximately 250m from St Ives local business centre.

The proposal

16. The amended proposal is for a total of 17 self-contained dwellings and includes the following:

• Adaptation of the existing house to create two dwellings and retention of the landscaped area to the north of the existing dwelling as a common open area;

• Demolition of the garage of the existing dwelling;

• Construction of a basement with access via both access handles to the north and south;

• Block B adjacent to the eastern boundary of the site containing six two-storey dwellings over the basement parking;

• Block C adjacent to the southern boundary containing five two-storey dwellings and one single storey dwelling over the basement parking;

• Block D adjacent to the western boundary containing three two-storey dwellings over the basement parking;

• A central garden area.

Planning framework

17. Clause 29 of the Seniors Housing SEPP requires the Court, exercising the functions of the consent authority, to consider certain site compatibility criteria for the application at cl 25(5)(b)(i), (iii) and (v), as follows:

(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,

…

18. Part 4 of Ch 3 of the Seniors Housing SEPP includes development standards to be complied with for seniors housing. Clause 40(4) is in the following terms:

40 Development standards—minimum sizes and building height

(1) General 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.

(2) Site size The size of the site must be at least 1,000 square metres.

(3) Site frontage The site frontage must be at least 20 metres wide measured at the building line.

(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.

19. Division 2 of Pt 3 Design requirements of Ch 3 of the Seniors Housing SEPP sets out the design principles for seniors housing development. Clause 33 of the Seniors Housing SEPP is in the following terms:

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.

20. Part 1 of Sch 3 of the Seniors Housing SEPP includes standards concerning accessibility that apply to seniors housing developments that consist of self-contained dwellings. Clause 9 is a standard requiring that a bathroom within a dwelling must be on the ground (or main) floor and have the facilities listed at subcl (1), including a shower; cl 10 is a standard requiring a dwelling to have at least one toilet on the ground (or main) floor and be a visitable toilet; and cl 17 is a standard requiring the kitchen, main bedroom, bathroom and toilet to be located on the entry level in a multi-storey self-contained dwelling.

21. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) (Land Zoning Map – Sheet LZN_013A of LEP 2012). The objectives of the R2 zone, to which regard must be had, 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 housing that is compatible with the existing environmental and built character of Ku-ring-gai.

22. The land to the north and west of the site is zoned R4 High Density Residential and the land to the south of the site (west of the southern access handle) is zoned R3 Medium Density Residential.

23. 9 Porters Lane is identified as a local heritage item (Sch 5 of LEP 2012, Item no. 131). The allotments that form the rear of the site are not part of the heritage listing. Subclause 5.10(4) of LEP 2012 requires the Court, exercising the functions of the consent authority, to consider the effect of the amended proposal on the heritage significance of the item before granting consent under cl 5.10 of LEP 2012. 9 Porters Lane was listed as a local heritage item during the Burrows’ ownership.

24. The vegetation within the north-eastern portion of the site was determined to be 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. There are trees of varying height and species with the southern portion of the site mapped under Part 18R.1 ‘Greenweb maps’ of the Ku-ring-gai Local Centres Development Control Plan 2012 (DCP 2012) as ‘canopy remnant’.

Public submissions

25. One resident objector gave evidence at the commencement of the hearing. The resident objector is concerned that the amended proposal will result in increased traffic and congestion in Porters Lane and amenity impacts on her properties, which adjoin the site. She is concerned that emergency vehicles will have difficulty accessing the site and that the access handle to Porters Lane is too narrow to accommodate cars and wheelchairs at the same time.

Expert evidence

26. The applicant relied on the expert evidence of Graham Brooks (heritage), Garry Chapman (planning), Alan Cadogan (urban design), Robert Frew (landscaping) and Michael Logan (traffic engineering).

27. The Council relied on the expert evidence of Leona Goldstein (heritage), Susan Brown (planning), Kerry Hunter (urban design), Geoff Bird (landscaping) and Brian O’Connell (traffic engineering).

28. The heritage experts prepared a joint report (Ex 4) and gave oral evidence. The planning and urban design experts prepared a joint report (Ex 3) and gave oral evidence. The landscape experts prepared a joint report and a supplementary joint report (Exs 5 and O), and the traffic engineers prepared a joint report (Ex 6).

The heritage significance of the dwelling and its setting

29. There are several statements of heritage significance for the heritage item admitted into evidence, as follows:

• The inventory sheet of the Heritage Study of the Municipality of Ku-ring-gai, authored by Robert Moore, Penelope Pike, Helen Proudfoot and Lester Tropman & Associated, undated. This inventory sheet does not include a statement of significance (Ex 8, tab 3);

• NSW State Heritage Inventory Form authored by Ian Grant and dated 7 April 2000 (Ex 8, tab 3);

• Statement of Heritage Impact by GBA dated May 2014 (Attachment 1 to Ex 4);

• Heritage Impact Statement by Weir Phillips dated January 2020 (Attachment 2 to Ex 4);

• Conservation Management Plan by GBA Heritage, dated September 2020 (CMP) and prepared “to accompany the appeal to the Land and Environment Court” (Ex 6, tab 9, p 5) includes a statement of significance at p 31 (Ex, tab 9);

• Statement of significance, undated, authored by Leona Goldstein (Ex 11). The Council submitted that this statement was recently written.

30. I have not given Ms Goldstein’s statement of significance (Ex 11) any weight beyond it being a summary of her expert opinion in these proceedings. A statement of significance written for the purpose of a contested hearing potentially lacks objectivity in assessing the item and this statement is not based on a full analysis of significance under the NSW heritage assessment criteria (Assessing Heritage Significance NSW Heritage Office publication and part of the NSW Heritage Manual).

30. The NSW State Heritage Inventory Form was presumably authored for the purpose of the local heritage listing and exhibited with the draft LEP. For this reason, the assessment and information in the NSW State Heritage Inventory Form is likely to be an objective assessment.

31. The statement of significance in the CMP characterises the later alterations and additions designed by Burrows as somewhat detracting from the heritage significance of the original, “an example of a Mid-Twentieth Century Modernist Style dwelling, albeit altered…”, and “Although extensively modified the building demonstrates the principal characteristics of modernist style architecture of the period…” [emphasis added]. The assessment of the later additions by Burrows as being of lesser significance is also reflected in the grading of significance of areas of the house (Ex 4, Attachment 1, Fig 13).

32. Generally, later additions to an original house identified for its architectural and aesthetic significance are considered to be of lesser significance than the original; but I do not agree that the additions designed by Burrows to this house compromise the original or detract from the architectural or aesthetic significance of the house and its setting, or that they are necessarily of lesser significance when compared to the original. This house was designed by the owner-architect and constructed in stages in a consistent architectural style and with great expertise. The original house inspired and generated the spatial layout and style of the subsequent additions, so that the house and its setting represent a holistic architectural vision and an organic response to the changing needs and expectations of family life, realised over Burrows’ career. I reject the premise that the alterations to the dwelling designed by Burrows are of less significance than the original.

The proposal has an unacceptable impact on the heritage significance of the item

The treatment of the eastern side of the house and the demolition of the garage will have a detrimental effect on the heritage significance of the item

34. The amended proposal includes demolishing the existing garage and later structures and constructing Building B in the approximate position of the garage and extending to the eastern boundary, with entries via courtyards on the western side of Building B (Ex A, A1001 Rev G).

35. According to Ms Goldstein, Block B will replace the eastern part of the curtilage area of the site and reduce its significance. The northern four dwellings of Block B will replace the eastern landscaped setting of the house, including the courtyard garden, the garage and ancillary building, and will eliminate the original design intent and relationship between the built, and landscaped, forms. The proposed mass and scale of Block B will be substantially larger than the existing single storey buildings and will be visually dominant due to its overall height and proximity to the original dwelling. In her opinion, the garage should be retained, but if it is not, the scale of the open space between the garage and the eastern elevation of the house should be maintained. The building envelope of Building B is substantially larger than the existing house and it will disrupt views to the house, change the context and be visually dominant.

36. According to Mr Brooks, he would not give the same weight as Ms Goldstein to the spatial and architectural composition of the house, garage and courtyard. He is content with a reasonable separation between Block B and the original dwelling. In his view, the original garage is not of the same architectural quality as the house because it is a single skin of brickwork and so the garage can be demolished and the redevelopment of the site of the garage with Building B is acceptable as it will enhance the long-term sustainability of the property’s heritage significance.

37. I do not accept that the garage’s single skin of brickwork is necessarily a cue to its lack of importance in the overall composition of the site. The external masonry walls of garages are commonly a single skin of brickwork with engaged piers because a garage is not required to be a habitable space. Although the siting of the garage makes an important contribution to the composition of the original layout, I accept that the demolition of the garage would be acceptable if the amended proposal in some way maintained the composition of the layout, so that the courtyard between the house and the garage is retained as part of the domain of the house. The demolished blade wall was an important sculptural element in the composition of the design. The layout of the eastern side of the existing dwelling should interpret the original to achieve a sympathetic transition between the existing dwelling and any new development to the east.

38. The relationship between Building B, the pedestrian routes and the existing house in the proposal completely disregards the historic composition of the area to the east of the house and ignores the relationship between the house, the garage, the blade wall, and the eastern courtyard. This aspect of the proposal has a detrimental impact on the identified heritage significance of the item.

The proposal does not complement and sensitively harmonise with the existing house

39. The amended proposal includes dividing the existing house into two dwellings. To achieve this, the house is divided so that Unit 1 occupies the western half of the house, including the swimming pool and rear terrace, and Unit 2 occupies the eastern half of the house. The amended proposal includes adding bathrooms and a kitchen, rearranging the layout of the house, adding an addition to the western end of the house and constructing a pergola to extend the northern verandah (Ex A, A3010 Rev B, A1001 Rev G).

40. The amended proposal includes constructing Building D immediately to the south of the pool terrace. The height of the northern elevation of Building D is 4.765m above the pool terrace (Ex A, A2101 Rev E).

41. The experts disagreed on the impact the proposed alterations and additions to the house would have on its identified heritage significance. Ms Goldstein is concerned that the single-family house will lose its use and that the reconfiguration of the layout will affect its integrity and interfere with a large amount of the internal fabric designed by Burrows. Mr Brooks is satisfied that the alterations and additions merely add another layer of acceptable change to the house.

42. I accept and prefer Ms Goldstein’s evidence that the alterations and additions proposed to the house to create two dwellings are cumulatively deleterious to the identified heritage significance of the item. I am not satisfied that the amended proposal amounts to the adaptive reuse of the house and the retention of the heritage significance of the item. The amended proposal is insensitive to the architectural features and fabric of the existing house and its composition; and it would diminish, erode and conceal its architectural and aesthetic values.

43. The pedestrian access to Unit 2, including the main access from the carpark for the future residents, is across the northern verandah and past the glass doors to the living room of Unit 1. This would be a serious imposition on the privacy of Unit 1 and it is not workable. The relationship between the transparency of the house, the northern verandah and the treatment of the northern landscaped area as a common area has not been adequately resolved in the proposal.

44. Having considered the effect of the amended proposal on the heritage significance of the item, pursuant to cl 5.10(4) of LEP 2012, I am not satisfied that the amended proposal is acceptable in terms of its impact on the identified heritage significance of the house, as designed by Burrows, both on the fabric and layout of the house and on its setting and the composition of the site’s layout. I am not satisfied that the amended proposal retains, complements and sensitively harmonises with the heritage item, pursuant to cl 33 of the Seniors Housing SEPP.

The proposal does not comply with the standards concerning accessibility for self-contained dwellings

45. The proposal does not comply with the standards cll 9, 10 and 17 of Pts 1 and 2 of Sch 3 to the Seniors Housing SEPP (the accessibility standards). The applicant provided a written request to contravene those standards, pursuant to cl 4.6 of LEP 2012 (Ex G, tab 6). A development standard in the Seniors Housing SEPP is amenable to cl 4.6 in the applicable LEP (Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 and Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153).

46. The applicant submits that the objectives of the standards are achieved by the provision of an internal lift in each dwelling which provides a vertical connection between the basement parking, the ground floor and the first floor of each of the new dwellings. The applicant relied on the supplementary report of Sydney Access Consultants prepared by Gary Finn (Ex G, tab 3), which found that the inclusion of an internal lift was a satisfactory alternative to the contravened accessibility standards.

47. The applicant tendered the assessment report prepared by council staff for a seniors housing development at 70 Warrangi Street, Turramurra, for which development consent has been granted by the Council (Ex L). Four units of the approved development at 70 Warrangi Street, Turramurra, did not comply with the accessibility standard under cl 17 of Pt 1 of Sch 3 to the Seniors Housing SEPP.

48. Clause 4.6(4) of LEP 2012 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court exercising the functions of the consent authority on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4).

49. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

50. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(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

51. The applicant bears the onus of demonstrating that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

52. 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; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

53. The applicant’s written request justifies the contravention of the accessibility standards on the basis that compliance is unnecessary because the amended proposal achieves the aims of the Seniors Housing SEPP by the inclusion of internal lifts to each new dwelling, which provide access to bedrooms and bathrooms for those dwellings that do not have all facilities on the ground floor level.

54. The grounds relied on by the applicant in the written request under cl 4.6 must be ‘environmental planning grounds’ by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]), as it refers to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the EPA Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

55. The written request states that the two-storey built form is suitable for the site, noting the transition with the R4 zone to the west and the R3 zone to the south. I accept that a two-storey building envelope is generally suitable for the site (notwithstanding that the height of the basement in areas results in a height above existing ground level that is greater than two-storeys) and that the adjoining high density and (potential for) medium density development provides scope for the location of building bulk in the south and south-western portions of the site. I do not accept the argument that the two-storey form of the development necessarily precludes achieving the accessibility standards for the site, because it is possible to achieve a two-storey building envelope and a spatial layout that conforms with the accessibility standards.

56. The written request cites the retention of the heritage item on the site and the associated landscaped setting curtilage, including the retention of significant trees, as the environmental planning ground that justifies the contravention of the accessibility standards, on the basis that the retention of the heritage item and its setting restricts the developable area on the site and the proposed two storey dwellings, are an efficient design on the developable area of the site.

57. I do not accept that the retention of the heritage item and its setting restricts the developable area of the site to the extent that it is not possible to also provide a spatial layout for dwellings that meets the accessibility standards. The constraint imposed by the retention of a heritage item and its setting may be a sufficient environmental planning ground within the meaning identified by his Honour in Initial Action at [23] to justify the contravention of certain standards in particular circumstances, but I do not agree that the retention of the existing house and its setting at 9 Porters Lane is a sufficient environmental planning ground to justify the non-compliance with the accessibility standards for multi-storey self-contained dwellings for the seniors housing development. The development of this site as a seniors housing development is not going to achieve the same yield as it would if it were a vacant site, because the presence of the house on the 9 Porters Lane allotment is clearly a constraint to the future development of the site. The retention of a heritage item and its setting does not, in of itself, justify transferring the conceptual development that would otherwise have been realised without the presence of the heritage item elsewhere on the site; nor does it justify intensifying or compromising the development that is proposed.

58. The provision of lifts within each dwelling does not achieve the purpose of the standard at cl 17 of Pt 1 of Sch 3 to the Seniors Housing SEPP. The objective of Ch 3 of the Seniors Housing SEPP is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age, at cl 14. The purpose of requiring the kitchen, main bedroom, bathroom and toilet to be located on the entry level is for convenience. It is inconvenient for a person who is frail, or has a disability, to have to use a lift merely to access a bathroom, or to make a cup of tea.

59. The written request, at page 3, envisages that those people who are more able bodied will occupy the units that do not comply with the accessibility standards and those who are frail, or have a disability, will occupy those units that do comply with the accessibility standards. The problem with this assumption is that the circumstances of any individual can change, and the mobility and dexterity of a senior person may deteriorate over time. The Seniors Housing SEPP sets aside the local planning controls and makes this higher density development permissible in the low density residential zone, with the aim of increasing the supply and diversity of residences that meet the needs of seniors or people with a disability in an established area. The accessibility standards ensure that the housing provided under the Seniors Housing SEPP will meet the current and future needs of seniors or people with a disability and they should not be lightly set aside.

60. The non-compliances of the proposal with the accessibility standards is significant, as summarised in the table included in the written request (Ex G, tab 6, p 2).

61. The site is not so constrained that the accessibility standards cannot be achieved. The site area is substantial. The site has a gentle fall. It is the yield combined with the terrace form of the new dwellings that has necessitated the vertical arrangement and layout of dwellings.

62. I am not satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) because the written request does not establish sufficient environmental planning grounds to justify the amended proposal’s contravention of the accessibility standards.

The bulk, scale, built form and character of the proposal would have a detrimental impact on the existing development to the east of the site

63. Clause 40(4)(c) of the Seniors Housing SEPP is a development standard and requires a building located in the rear 25% area of the site to not exceed one storey in height when the development is proposed in a residential zone where residential flat buildings are not permitted. The site is within a residential zone and residential flat buildings are prohibited in the R2 zone under LEP 2012. Clause 29 of the Seniors Housing SEPP requires the Court, exercising the functions of the consent authority, to consider certain site compatibility criteria for the application, including, at cl 25(5)(b)(v), the impact that the bulk, scale, built form and character of the amended proposal is likely to have on the existing uses of land in the vicinity of the proposal.

63. The planning experts agreed that the rear of the site within the meaning of cl 40(4)(c) of the Seniors Housing SEPP is difficult to ascertain, because the site is comprised of three battle-axe allotments with an access handle to the north and an access handle to the south. Notwithstanding this difficulty, the planning experts agreed that the rear area of the site is within the central area of the site, as it is the “rear” of the individual lots that make up the site. The applicant tendered two written requests to contravene the development standard, each with a different interpretation of the application of the development standard to the site (Ex G, tab 7 and tab 8).

64. The planning experts agreed that the objective of the development standard is given by Part 4 of the Seniors Living Policy (cl 31 of Seniors Housing SEPP) and relates to minimising privacy and amenity impacts on neighbouring properties, adequate building separation and providing an outlook to mature planting.

65. Given my determinative findings regarding the other contentions, there is no need for me to construe the terms of cl 40(4)(c) and its application to the site. The development standard cannot be usefully applied to this site because the purpose of requiring single storey development in the rear portion of a site is to reflect the pattern of development on adjoining low density residential properties so that a seniors housing development that occupies the rear of a site does not result in unreasonable amenity impacts on adjoining backyards. This site is constrained in varying degrees by the surrounding development because of the land-locked configuration of the site and its position adjacent to the boundaries of the R3 and R4 zones. Certainly, requiring the development to be single storey in the centre of the cumulative site does not achieve any planning purpose.

66. In relation to amenity impacts on adjoining properties, I accept Ms Hunter’s evidence that the impact of the building envelope of Building B on the private open space of 7 Cresta Close is unacceptable and result in unreasonable amenity impacts on the private open space of 7 Cresta Close and poses a considerable constraint to any future development of 7 Cresta Close. Building B, with six dwellings backing onto the shared boundary, is two storeys in height and is setback 2.1m and 3m from the shared boundary with 7 Cresta Close (Ex D, Ex A A1001 Rev G, A1002 Rev G, A2001 Rev E). Mr Chapman conceded in his oral evidence that the private open space of 7 Cresta Close will receive sunlight between 9am and 11.30am on the winter solstice, and not a minimum of 3 hours.

Conclusion

68. The amended proposal would have a detrimental effect on the heritage significance of the item, pursuant to cl 5.10(4) of LEP 2012 and is inconsistent with the design requirements of Ch 3 of the Seniors Housing SEPP at cl 33(b), because the amended proposal does not retain, complement and sensitively harmonise with the heritage item.

69. I am not satisfied that the applicant’s written request to justify the contravention of the accessibility standards in Pts 1 and 2 of Sch 3 to the Seniors Housing SEPP, at cll 9, 10 and 17, requiring the kitchen main bedroom, bathroom and toilet to be located on the entry level in a multi-storey self-contained dwelling, has adequately addressed the matters required to be addressed by cl 4.6(3) of LEP 2012.

70. I am not satisfied that the impact that the bulk, scale, built form and character of the amended proposal is likely to have on adjoining development is acceptable, pursuant to cl 25(5)(b)(v) of the Seniors Housing SEPP.

Orders

71. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the amended plans marked Exhibit A.

2. The Applicant is to pay the Respondent $8000.00 within 30 days of the date of these orders, being the agreed amount for those costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is dismissed.

4. Development Application No. 86/19 for the demolition of ancillary structures and adaption of an existing dwelling into two seniors living dwellings and construction of fifteen new seniors living dwellings, at 9 Porters Lane and 30 and 30C Shinfield Avenue, St Ives, is refused.

5. The exhibits, other than exhibits 1, A and K, are returned.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 09 November 2020