Pymble Villas Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1586

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pymble Villas Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1586
Hearing dates:	6-8 November 2018
Date of orders:	14 November 2018
Decision date:	14 November 2018
Jurisdiction:	Class 1
Before:	O’Neill C and Horton C
Decision:	(1)   Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits U, V and X, subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed. (2)   The appeal is dismissed. (3)   Development Application No. 0402/17 for a seniors housing development of 14 self-contained dwellings at 102 and 104 Bannockburn Road, 2 Reely Street, Pymble and 83 Bobbin Head Road, Turramurra, is refused. (4)   The exhibits, other than Exhibits 1, 11, A, U, V and X, are returned.
Catchwords:	DEVELOPMENT APPLICATION: seniors housing development – whether the development standards contained in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 are capable of variation by way of clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 – non-compliance with development standards in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Ku-ring-gai Development Control Plan Seniors Living Policy: Urban Design Guideline for Infill Development
Category:	Principal judgment
Parties:	Pymble Villas Pty Ltd (Applicant) Ku-ring-gai Municipal Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) Dr J Smith (Respondent)   Solicitors: McKee Legal Solutions (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/320894
Publication restriction:	No

Judgment

1. COMMISSIONERS: 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 deemed refusal of Development Application No. 0402/17 for a seniors housing development of 14 self-contained dwellings and associated civil and landscaping works (the proposal) at 102 and 104 Bannockburn Road, 2 Reely Street, Pymble and 83 Bobbin Head Road, Turramurra (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to conciliation on 18 April 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 9 May 2018, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 4 September 2018 for the applicant to amend the application for development consent (Exhibit A). Leave was granted by the Court on 5 November 2018 for the Council to amend the Statement of Facts and Contentions to add a contention that the proposal is partially prohibited development.

4. Leave was granted by the Court at the commencement of the hearing for the applicant to amend the application for development consent (architectural plans marked ‘Exhibit H’ and landscape plans marked ‘Exhibit K’) and leave was again granted by the Court on the final day of the hearing for the applicant to amend the application for development consent (architectural plans marked ‘Exhibits U’, landscape plans marked ‘Exhibit V’ and a revised stormwater plan marked ‘Exhibit X’), subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application in Exhibits U, V and X when compared to the application in Exhibit A, as agreed or assessed. A schedule of amendments to the architectural plans in Exhibit H was tendered as Exhibit J. Leave was granted to the respondent to amend the contentions in response to the amendments in Exhibit H.

Issues

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

• The proposal is partially prohibited development because the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors Housing) does not apply to part of the site mapped ‘biodiversity’ under cl 6.3 of the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) by operation of cl 4(6) and Sch 1, cll (b) and (d) of SEPP Seniors Housing. The area mapped ‘biodiversity’ on the map is the south-western corner of the battle-axe allotment known as 102 Bannockburn Road, Pymble. House 6 is located on the area mapped ‘biodiversity’ on the map.

• The proposal does not comply with the standards for self-contained dwellings in cll 40 and 41 of SEPP Seniors Housing, including a site frontage of at least 20m at cl 40(3); a continuous path of travel to the common areas from all dwellings is not shown on the drawings; and Houses 1, 2, 4 and 8 do not have a kitchen, main bedroom, bathroom and toilet on the entry level, as required by Sch 3, Pt 2, cl 17 of SEPP Seniors Housing. Consent cannot be granted until the standards in SEPP Seniors Housing have been complied with as cl 4.6 of LEP 2015 has no relevant application.

• The proposed deep soil zone does not provide a high proportion of open space and planting that is characteristic of less urban areas on large lots.

• The proposal provides for inadequate setbacks to the street and side boundaries and this results in an unacceptable impact on the landscape character and is contrary to the considerations of cl 33(c) and (d) of SEPP Seniors Housing.

• The proposal is considered to be inconsistent with, and fail the considerations of the design guide Seniors Living Policy: Urban Design Guideline for Infill Development contrary to the considerations of cl 31 of SEPP Seniors Housing.

• The proposal will have unacceptable impacts on trees identified as Trees 2, 11, 12, 29, 44 and 52.

• The proposal is not in the public interest.

The site and its context

6. The site consists of four parcels of land, with four existing dwellings. The site is legally described as Lot 2 in DP509694, Lot 1 in DP7587, Lot 10 in DP13747 and Lot A within DP370027 and is known as 102 and 104 Bannockburn Road, Turramurra, 2 Reely Street, Pymble and 83 Bobbin Head Road, Turramurra. The site has an area of 5,357m². The site has a frontage on the western boundary of 18.29m wide to Bobbin Head Road and on the eastern boundary of 47.855m to Bannockburn Road and Reely Street.

7. The surrounding pattern of development consists of single and two storey residential dwellings set in landscaped grounds.

The proposal

8. The proposal includes the following:

• demolition of all existing structures;

• 14 x two-storey dwellings;

• one car parking space and a shared zone for each dwelling;

• landscaping and stormwater engineering works.

Planning framework

9. The proposal relies on the operation of the SEPP Seniors Housing for permissibility because the proposal is a prohibited use in the R2 Low Density Residential zone under LEP 2015. The relevant aim of SEPP Seniors Housing is to encourage the provision of housing that will be of good design, at cl 2(1)(c). The aims of SEPP Seniors Housing will be achieved by 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 the policy, at cl 2(2)(a).

10. SEPP Seniors Housing does not apply to land described in Schedule 1 (Environmentally sensitive land), at cl 6(a). Schedule 1 Environmentally sensitive land is in the following terms:

Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions:

…

(b) conservation (but not land identified as a heritage conservation area in another environmental planning instrument),

…

(d) environment protection, …

11. Clause 15 of SEPP Seniors Housing is in the following terms:

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.

12. The consent authority must not consent to a development application made pursuant to SEPP Seniors Housing unless the consent authority is satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with cl 30. We accept the applicant’s submission that a site analysis in accordance with cl 30 was provided to Council as part of the application.

13. The consent authority must not consent to a development application made pursuant to SEPP Seniors Housing unless the consent authority is satisfied that the proposal demonstrates that adequate regard has been given to the principles set out in Div 2. Division 2 Design principles, at cll 33-35, relevantly include the following:

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

…

(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.

35 Solar access and design for climate

The proposed development should:

(a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space …

14. Part 4 of SEPP Seniors Housing provides development standards to be complied with. Clauses 40 and 41 are 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.

41 Standards for hostels and self-contained dwellings

(1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of a hostel or self-contained dwelling unless the proposed development complies with the standards specified in Schedule 3 for such development …

15. The relevant terms of Schedule 3 are as follows:

Part 1 Standards applying to hostels and self-contained dwellings

1 Application of standards in this Part

The standards set out in this Part apply to any seniors housing that consists of hostels or self-contained dwellings.

2 Siting standards

(1) Wheelchair access

If the whole of the site has a gradient of less than 1:10, 100% of the dwellings must have wheelchair access by a continuous accessible path of travel (within the meaning of AS 1428.1) to an adjoining public road.

(2) If the whole of the site does not have a gradient of less than 1:10:

(a) the percentage of dwellings that must have wheelchair access must equal the proportion of the site that has a gradient of less than 1:10, or 50%, whichever is the greater, and

(b) the wheelchair access provided must be by a continuous accessible path of travel (within the meaning of AS 1428.1) to an adjoining public road or an internal road or a driveway that is accessible to all residents.

Note. For example, if 70% of the site has a gradient of less than 1:10, then 70% of the dwellings must have wheelchair access as required by this subclause. If more than 50% of the site has a gradient greater than 1:10, development for the purposes of seniors housing is likely to be unable to meet these requirements.

(3) Common areas

Access must be provided in accordance with AS 1428.1 so that a person using a wheelchair can use common areas and common facilities associated with the development.

16. Part 2 of Sch 3 includes, at cl 17, Access to kitchen, main bedroom, bathroom and toilet: In a multi-storey self-contained dwelling, the kitchen, main bedroom, bathroom and toilet must be located on the entry level.

17. Standards that cannot be used to refuse development consent for self-contained dwellings, at cl 50, includes the following:

50 Standards that cannot be used to refuse development consent for self-contained dwellings

A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds:

(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys),

(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less,

(c) landscaped area: if:

(i) in the case of a development application made by a social housing provider—a minimum 35 square metres of landscaped area per dwelling is provided, or

(ii) in any other case—a minimum of 30% of the area of the site is to be landscaped,

(d) Deep soil zones: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15% of the area of the site (the deep soil zone). Two-thirds of the deep soil zone should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3 metres, …

18. The site is zoned R2 Low Density Residential pursuant to LEP 2015 and the proposal is not permissible under LEP 2015.

19. Clause 1.9 of LEP 2015 is in the following terms:

1.9 Application of SEPPs

(1) This Plan is subject to the provisions of any State environmental planning policy that prevails over this Plan as provided by section 36 of the Act.

(2) The following State environmental planning policies (or provisions) do not apply to the land to which this Plan applies:

State Environmental Planning Policy No 1—Development Standards

20. Clause 4.6 Exemptions to development standards is in the Standard Template LEP terms and relevantly includes the following at subcl (2):

(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.

21. Clause 6.3 of LEP 2015 is in the following terms:

6.3 Biodiversity protection

(1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including:

(a) protecting biological diversity of native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities, populations and their habitats, and

(d) protecting, restoring and enhancing biodiversity corridors.

(2) This clause applies to land identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a) the impact of the proposed development on the following:

(i) any native vegetation community,

(ii) the habitat of any threatened species, population or ecological community,

(iii) any regionally significant species of plant, animal or habitat,

(iv) any biodiversity corridor,

(v) any wetland,

(vi) the biodiversity values within any reserve,

(vii) the stability of the land, and

(b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is consistent with the objectives of this clause, and

(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided:

(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.

(5) In this clause:

biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.

Public submissions

22. Seven resident objectors gave evidence at the commencement of the hearing onsite. The Court in the company of the parties and their experts viewed the site from 100 Bannockburn Road, 4 Reely Street, 85 and 81 Bobbin Head Road, Turramurra. The concerns of the resident objectors can be summarised as:

• The Construction Management Plan should be provided by the applicant before consent is granted because the construction phase of the proposal may pose a danger to children walking to nearby Pymble Public School;

• The proposal will compromise the amenity and privacy of the pool and backyard of 100 Bannockburn Road because of the proximity of the proposed dwellings to the shared boundary, the height of those dwellings and windows on the upper levels;

• The proposal will compromise the amenity and privacy of the backyard and bedroom windows on the southern façade of 4 Reely Street;

• The proposal will compromise the amenity and privacy of the front yard of 85 Bobbin Head Road and Dwelling No. 8 is positioned forward of the required 20m front setback with a 1.2m side setback which will compromise the existing outlook over vegetation from the upper terrace at 85 Bobbin Head Road;

• The proposal may compromise the privacy of the pool area in the backyard of 81 Bobbin Head Road and the site will be used as a thoroughfare for pedestrian traffic;

• The proposal will result in the demolition of existing trees and vegetation that provide privacy and amenity to nearby properties;

• The density and height of dwellings proposed represents an overdevelopment of the site.

Expert evidence

23. The applicant relied on the expert evidence of Mr Steve Kennedy (urban design), Mr Aaron Lakeman (landscape design), Mr Guy Paroissien (arboriculture) and Mr David Goding (accessibility). The Council relied on the expert evidence of Mr Michael Lewarne (urban design and accessibility) and Ms Tempe Beavan (arboriculture).

24. The applicant relied on the expert planning evidence of Mr Andrew Minto and the Council relied on the expert planning evidence of Mr Scott McInnes. These experts provided two joint reports, Exhibits 6 and S and were not required to give oral evidence.

The amended application in Exhibit H is not required to be renotified

25. The applicant amended the proposal in response to the agreed evidence of the various experts and the Court granted leave for the applicant to amend the application for development consent (Exhibit H). The granting of the Court’s leave was opposed by the Council on the bases that the experts had not conferred in relation to the amended proposal; the amendments were not minor within the meaning of s 8.15(3) of the EPA Act; the Council should be given leave to amend the Statement of Facts and Contentions to raise additional contentions in relation to the amended application; and if leave was granted to the applicant to amend the proposal, the amended proposal should be renotified to the resident objectors pursuant to the Ku-ring-gai Development Control Plan (KDCP) Section C, Part 25 Notification, because the changes to the application result in new amenity impacts on adjoining neighbours.

26. The parties later came to an agreement that the amendments in the amended application were not minor within the meaning of s 8.15(3) of the EPA Act and the applicant agreed to paying those costs of the respondent thrown away as a result of the amendment of the application.

27. The Council submitted that the amended proposal should be renotified to the resident objectors for 14 days and the hearing adjourned for this purpose, because some amendments proposed to the application resulted in environmental impacts that were greater than the original proposal.

28. The KDCP at Section 3, Part 25 includes the following objectives in relation to the notification of development applications:

“1 To enable public participation in the planning process that is appropriate to the type and form of development proposed.

2 To ensure a consistent, transparent and efficient development assessment process.”

29. In relation to amendments to undetermined DAs for all development types, Part 25 of KDCP requires where the environmental impact will be the same or less that the original proposal, notification type A; or where the environmental impact will be greater than the original proposal, notification type B, as follows:

“Notification Type A requirements

1 No notification is necessary except where, in the opinion of Council’s development assessment team leader, the owners and occupiers of adjoining and neighbouring land would be detrimentally affected in any manner described in 25.3.of this Part if the development proposal was carried out.

2 In the event that Council’s development assessment team leader determines that owners and occupiers of adjoining and/or neighbouring land would be detrimentally affected by the proposed development, notification letters are to be sent in accordance with 25.5 of this Part to all such persons.

Notification Type B requirements

3 Notification letters must be sent in accordance with 25.5 of this Part to:

i) all persons who were notified about the original application or any subsequent applications for amendment or modification; and

ii) all persons who made submissions with respect to the original application and any subsequent applications for amendment or modification.

4 Where, in accordance with the above controls, Council’s development assessment team leader determines that re-notification and re-advertising is not to occur, the assessment report on the application is to include a statement giving the reasons why renotification was not considered necessary.

5 The development application is to be available for public inspection for a period of fourteen (14) calendar days from the date of the notification letter.

6 The development application is to be listed on Council’s website and in information supplied on a weekly basis to Councillors as specified in 25.4 of this Part.”

30. KDCP relevantly includes the following in relation to criteria to be considered in determining detrimental effects, at Part 25.3:

“Controls

1 In forming an opinion as to whether notification requirements should be increased or decreased from those specified in this DCP, Council’s development assessment team leader is to consider whether the enjoyment of adjoining or neighbouring land could be likely to be detrimentally affected by the proposed development.

2 In considering whether enjoyment of adjoining or neighbouring land could be likely to be detrimentally affected by the proposed development, the development assessment team leader is to take into account the following matters:

i) views from surrounding properties;

ii) overshadowing;

iii) loss of privacy;

iv) noise impact;

v) the design and appearance of the proposal in relation to the

streetscape;

vi) the use of the development;

vii) the scale, height, external appearance and bulk of the proposed

building;

viii) the siting of any proposed building in relation to the site

boundaries;

ix) hours of use;

x) light spillage or reflection;

xi) the structural integrity of common or party walls where

demolition of walls, floors and ceilings is proposed;

xii) traffic and parking generation;

xiii) adverse impacts of stormwater drainage;

xiv) tree removal impacts; and

xv) excavation requirements.

3 The opinion formed by Council’s development assessment team leader regarding the likely detrimental impact upon the enjoyment of adjoining and neighbouring land is not an assessment of the merits of the development application.”

31. Having considered the criteria at Part 25.3 of KDCP, we are satisfied that the amendments to the proposal in Exhibit H result in environmental impacts that would be the same or less that the original proposal and that no notification is necessary because the detrimental impact on adjoining neighbours has decreased overall when the amended proposal (Exhibit H) is compared to the original proposal (Exhibit A).

Whether the standards in SEPP Seniors Housing are amenable to variation under cl 4.6 of LEP 2015

Applicant’s submissions – the development standards contained in SEPP Seniors Housing are capable of variation by way of cl 4.6 of LEP 2015

32. The applicant submits that cl 4.6 of LEP 2015 is available to vary a development standard in another environmental planning instrument, pursuant to cl 4.6(2) of LEP 2015.

33. Clauses 40(3) and (4) of SEPP Seniors Housing do not absolutely prohibit certain development on land, but rather set empirical controls for permitted development. These are, therefore, development standards. The standards contained within cl 40 of SEPP Seniors Housing are development standards and not a prohibition and as such, they are capable of variation. By reason of the express reference in cl 4.6 to ‘any environmental planning instrument’, clauses that contain development standards in any SEPP are amendable to variation under cl 4.6 and cl 4.6 is effectively incorporated into every planning instrument applying to the land, including SEPP Seniors Housing.

34. Clause 15 of SEPP Seniors Housing is not intended to add further constraints to the development of seniors housing, rather, it is a facultative provision, not a constraint on the exercise of power. Nothing in the words in cl 15 of SEPP Seniors Housing, “in accordance with the policy”, can be taken as excluding the flexibility authorised by cl 4.6 of LEP 2015. Very clear words of exclusion would be required to override the effect of the unambiguous words in cl 4.6, “this or any other environmental planning instrument”. SEPP Seniors Housing could have expressly excluded the use of cl 4.6 from development standards under the SEPP. There is nothing in the language of cl 15 of SEPP Seniors Housing suggests that it is a pre-condition to the grant of consent, it is really no more than an objects clause.

35. The flexible application of development standards allowed by cl 4.6 does not mean that a development is not being carried out in accordance with the instrument. The development is still in accordance with the policy because without the policy, that form of development would not be permissible. The proposition that cl 4.6 does apply to standards in SEPP Seniors Housing is supported by a long line of decisions in the Land and Environment Court of New South Wales.

Council’s submissions - the development standards contained in SEPP Seniors Housing are not capable of variation by way of cl 4.6 of LEP 2015

36. The Council submits that cl 4.6 of LEP 2015 cannot be used to vary development standards in SEPP Seniors Housing, because cl 15 of SEPP Seniors Housing establishes a precondition to the grant of consent under SEPP Seniors Housing that must be satisfied before Chapter 3 of SEPP Seniors Housing will allow development for the purposes of seniors housing. The SEPP Seniors Housing provides a “conditional” right to permissibility. If the development for the purpose of seniors housing is not carried out in accordance with SEPP Seniors Housing, then the cl 15 “gateway” remains closed and Chapter 3 of SEPP Seniors Housing cannot operate to displace or circumvent any prohibition against development for the purposes of seniors housing in another environmental planning instrument.

37. When cl 15 of SEPP Seniors Housing is read in context, particularly in conjunction with cl 2(2)(a), it is reasonably to be inferred that development will not be carried out “in accordance with this policy” within the meaning of cl 15 if the development does not comply with the development standards expressed in mandatory terms, such as cl 40(3) of SEPP Seniors Housing.

38. Clause 16 supports the construction of cl 15 advanced by the Council as it states that development “allowed by this chapter” may be carried out with the consent of the relevant consent authority.

39. SEPP Seniors Housing does not give carte blanche permission to override a considered prohibition in an environmental planning instrument, rather it is facultative and beneficial in its effect, within appropriate bounds, by providing a mechanism to permit a prohibition against seniors housing in another environmental planning instrument to be displaced or circumvented, but only if certain standards prescribed by the SEPP Seniors Housing in mandatory terms are achieved.

40. As the proposal does not meet the development standard for a minimum site frontage of 20m mandated by cl 40(3) of SEPP Seniors Housing, it follows that the benefit of cl 15 is not enlivened, because its express precondition has not been met.

41. Clause 4.6 in LEP 2015 has a legitimate realm of operation in permitting variation of a development standard where the development is permissible, but not where the development is prohibited. It is not the role of cl 4.6 to displace a prohibition.

42. The Court is not bound by the decision in Ku-ring-gai Council v Pathways Property Groups Pty Ltd [2018] NSWLEC 73 (Pathways).

Findings

43. A development standard is defined at s 1.4 of the EPA Act, as follows:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(i) road patterns,

(j) drainage,

(k) the carrying out of earthworks,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

(o) such other matters as may be prescribed.

44. The parties agreed that the provisions of cl 40 of SEPP Seniors Housing contain development standards as defined by the EPA Act (although the Council submits that they are “particular species” of development standards, the function of which can only properly be understood by a close consideration of the terms of cll 15 and 16 of SEPP Seniors Housing).

45. The “accessibility standard” at cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing conforms to the definition of a development standard at s 1.4 of the EPA Act, because it is a requirement specified in respect of an aspect of the development, that is, that the kitchen, main bedroom, bathroom and toilet must be located on the entry level of a multi-storey self-contained dwelling.

46. The Council’s submission in this matter is virtually the same submission advanced before Justice Moore in Pathways at [74]. His Honour held that cl 40 of SEPP Seniors Housing was amenable to variation under cl 4.6 of LEP 2015 at [87] and [91]. We agree with Justice Moore’s finding and adopt his reasoning, to the extent that the standards in SEPP Seniors Housing are amenable to variation under cl 4.6 of LEP 2015 because cl 4.6 can be applied to another environmental planning instrument, at cl 4.6(2); and because there is no express exclusion of the development standards in cll 40 and 41 of SEPP Seniors Housing to the operation of cl 4.6, as envisaged by cl 4.6(2), “this clause does not apply to a development standard that is expressly excluded from the operation of this clause”.

Contravention of the site frontage development standard at cl 40(3) of SEPP Seniors Housing

47. The proposal has two street frontages; a western frontage to Bobbin Head Road which is 18.29m wide and an eastern frontage to Bannockburn Road and Reely Street which is 47.855 wide.

48. Clause 40(3) of SEPP Seniors Housing is in the following terms:

(3) Site frontage

The site frontage must be at least 20 metres wide measured at the building line.

49. The applicant seeks an exception to the development standard for site frontage in SEPP Seniors Housing for the western frontage to Bobbin Head Road pursuant to cl 4.6 of LEP 2015. The applicant provided a cl 4.6 written request in support of the variation of the site frontage development standard in SEPP Seniors Housing.

The applicant’s written request to contravene a development standard

50. The applicant bears the onus to demonstrate 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 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)); and

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

51. 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 (Wehbe) at [42]-[51] and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard;

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

3. Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. The development standard has been abandoned by the council; or

5. The zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

52. 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. “Sufficient environmental planning grounds” is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]). The environmental planning grounds relied on in the written request under cl 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. 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]).

52. The applicant provided a written request seeking to justify the contravention of the site frontage development standard in SEPP Seniors Housing at cl 40(3). The applicant’s written request justifies the contravention of the development standard on the following bases:

• The eastern street frontage to Bannockburn Road and Reely Street is well in excess of the 20m minimum street frontage requirement in SEPP Seniors Housing. The consolidated site has a combined street frontage to Bannockburn Road and Reely Street of 47.855m, a frontage to Bobbin Head Road of 18.29m and a site depth of in excess of 120m.

• The site frontage to Bobbin Head Road whilst having a frontage at the building line of less than 20m, is to support a single dwelling which presents to Bobbin Head Road and its associated driveway and will provide an outcome consistent with that envisaged by the Ku-ring-gai LEP & DCP for development within the R2 - Low Density Residential zone.

• The proposal is otherwise compliant with the prescriptive requirements of the SEPP Seniors Housing.

• The presentation of the development to Bobbin Head Road will not result in any unreasonable streetscape impacts noting that the development will only contain a single dwelling presentation to Bobbin Head Road consistent with the requirements of the Council for the R2 - Low Density Residential zone.

• The proposal will not result in any unreasonable impacts upon the adjoining properties as a result of the street frontage measured at the building line to Bobbin Head Road.

• The development site is a large site which will involve the consolidation of 4 individual parcels of land having a combined site area of 5,357m². The site is a substantial parcel of land.

• The site frontage to Bobbin Head Road of 18.29m is consistent with the current subdivision requirements for an allotment located within the R2 - Low Density Residential zone as required by cl 4.1(3A)(a) of the LEP 2015.

• The proposal provides for a single dwelling house structure presenting to Bobbin Head Road together with a driveway which serves that dwelling only. Having regard to the compliant allotment width, it is considered that such an outcome is completely consistent with that envisaged for the site as it presents to Bobbin Head Road.

• All driveway access for the remainder of the development is to be from Reely Street such that the development will not present as a Seniors Living development from Bobbin Head Road.

55. We are not satisfied that the written request has adequately addressed that compliance with the site frontage development standard in SEPP Seniors Housing is unnecessary or unreasonable in the circumstances of this proposal for the following reasons:

• Both the western site frontage to Bobbin Head Road and the eastern site frontage to Bannockburn Road and Reely Street are “site frontages” within the meaning of cl 40(3) of SEPP Seniors Housing. The Bobbin Head Road frontage is not a “secondary frontage”, because when viewed from the public domain in Bobbin Head Road it is clearly a site frontage and it will not be read as a secondary frontage to the primary site frontage elsewhere.

• The front setback of House 8 to the Bobbin Head Road boundary is 7.4m to match the setback of 81 Bobbin Head Road. The topography along the eastern side of Bobbin Head Road falls to the south, so that the site is approximately 3.5m higher that 81 Bobbin Head Road. 81 Bobbin Head Road has a wider frontage than the site and the dwelling is positioned in the centre and southern portion of the site, with a garage significantly setback from the building line on the northern side. 81 Bobbin Head Road is forward of the building line of its southern neighbour at 79 Bobbin Head Road. The existing dwelling to the north of the site at 85 Bobbin Head Road has a much greater front setback of approximately 20m. House 8 is approximately 15m wide and occupies the majority of the allotment, with a narrow side setback on the northern side of approximately 1.2m and a side setback on the southern side of approximately 2.2m. The side setback on the southern side accommodates a pedestrian entry into the site for all 14 dwellings. To accommodate the disparity in front setback between 81 and 85 Bobbin Head Road and the relatively narrow frontage of the site when compared to its neighbours, House 8 should have a front setback that approximately averages the setbacks of its neighbours with a side setback to 85 Bobbin Head Road that maintains a generous landscaped curtilage around House 8.

• To adopt the front setback of the southern neighbour at 81 Bobbin Head Road ignores the change in level between the site and its lower neighbour and the generous northern setback of the dwelling at 81 Bobbin Head Road. The site has a stronger relationship to 85 Bobbin Head Road than to 81 Bobbin Head Road because of the similar levels of the site and 85 Bobbin Head Road, whereas 81 Bobbin Head Road is at a lower level and the dwelling is positioned with a generous northern side setback. The proximity of House 8 to the shared boundary of 85 Bobbin Head Road, it’s position significantly forward of the dwelling at 85 Bobbin Head Road and the width of House 8 across the site ignores the constraint of the relatively narrow frontage to Bobbin Head Road and the relationship between the proposal and 85 Bobbin Head Road. These factors result in House 8 proportionally dominating the Bobbin Head Road elevation.

• The proposal has a detrimental visual and privacy impact on the neighbour at 85 Bobbin Head Road because House 8 is positioned close to the shared boundary and much closer to the street boundary compared to 85 Bobbin Head Road. House 9 is directly behind and attached to House 8 and House 10 is behind House 9, so that there is built form adjacent to the length of the shared boundary between the site and 85 Boundary Road, contrary to the established character of the R2 Low Density zone. The changes made to Houses 8 and 9 in Exhibit U have improved the relationship between the proposal and 85 Bobbin Head Road by increasing the setback of the upper level, however, the minimal front setback of the proposal still has an unacceptable detrimental impact on the setting of 85 Bobbin Head Road.

• The proposal does not adequately respond to the constraint of the relatively narrow site frontage to Bobbin Head Road when compared to the more generous frontages of neighbouring properties and we are not satisfied that the written request adequately justifies the non-compliance of the proposal with the site frontage development standard of 20m at cl 40(3) of SEPP Seniors Housing.

56. The agreed evidence of the planning experts (Exhibit S) unnecessarily deals with the legal issue regarding whether the development standards contained in SEPP Seniors Housing are capable of variation by way of cl 4.6 of LEP 2015; yet their evidence does not engage with the substance of the applicant’s written request to vary the development standard.

57. We are not satisfied that the applicant’s written request to contravene the site frontage development standard in SEPP Seniors Housing has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.

Contravention of the access standard at cl 41 and Schedule 3, Part 2 (17) of SEPP Seniors Housing

58. The proposal includes 7 houses which do not comply with the following standard for self-contained dwellings at cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing:

17 Access to kitchen, main bedroom, bathroom and toilet

In a multi-storey self-contained dwelling, the kitchen, main bedroom, bathroom and toilet must be located on the entry level.

59. The applicant seeks an exception to the access standard for self-contained dwellings in SEPP Seniors Housing. The applicant provided a cl 4.6 written request in support of a variation to the standard, which was marked as Exhibit Z.

The applicant’s written request

60. The applicant provided a written request seeking to justify the contravention of the accessibility standard at cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing. The applicant’s written request justifies the contravention of the development standard on the following bases:

• The proposal provides for 7 dwellings, Houses 1, 2, 4, 5, 6, 8 and 14 which do not comply with the requirements of cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing to locate the kitchen, main bedroom, bathroom and toilet on the entry level.

• All the dwellings which do not comply with the accessibility standard have an internal lift. A private lift will provide convenient and appropriate access between the levels.

• All the dwellings which do not comply with the accessibility standard contain as a minimum a kitchen, bathroom and toilet on the entry level.

• All of the dwellings which do not comply with the accessibility standard contain a room, typically a study, which could be utilised as a short term bedroom in the event that the lift was not working.

• All of the subject dwellings are capable of being fitted with a stair climber as an alternative to the lift in the event it was inoperative.

• The proposal is located on land that has a varying topography, which has necessitated dwellings to be designed in response to that topography. When combined with a need to provide an appropriate built form outcome of reduced upper level bulk, has necessitated some dwellings not having a kitchen, main bedroom, bathroom and toilet located on the entry level.

• Strict compliance with the standard would potentially result in a reduction in the number of dwellings provided on the site.

• The proposal results in a high quality architectural outcome for the site which will make a positive contribution to the locality.

61. We are not satisfied that the written request has adequately addressed that compliance with the accessibility standard in SEPP Seniors Housing is unnecessary or unreasonable in the circumstances of this proposal for the following reasons:

• Houses 1, 2, 4, and 8 do not comply with the requirements of cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing to locate the kitchen, main bedroom, bathroom and toilet on the entry level (Exhibit U). House 1 has the main living areas and main bedroom on the upper level with the entry on the lower level. House 2 has the living areas on the lower level and the main bedroom on the upper level. House 4 has the living areas and main bedroom on the upper level with the entry on the lower level. House 8 has the living areas on the lower level with a study, and the main bedroom on the upper level.

• Not all dwellings which do not comply with the accessibility standard contain a kitchen, bathroom and toilet on the entry level, including Houses 1, 4 and 8.

• Not all dwellings which do not comply with the accessibility standard contain a room, typically a study, which could be utilised as a short term bedroom in the event the lift was not working.

• The reason for the non-compliance with the standard is the number of self-contained dwellings located on the site, which has necessitated a number of attached dwellings with small footprints and their accommodation spread over two levels, in order to fit 14 self-contained dwellings on this site. In addition, the oversized single garages, which are 5.5m wide with a double garage door, occupy a significant area of the entry level and preclude other accommodation being located on the entry level of dwellings.

• We do not accept that the topography of the site necessitates two levels with a significant portion of the accommodation located on the upper level. In our view, it is possible to reduce the overall number of dwellings and fit dwellings with a single garage, entry foyer, main bedroom and bathroom including a toilet and kitchen and living areas on the lower level with a bedroom, study and bathroom located on the upper levels within the roof form, to comply with the accessibility standard.

• We do not accept that a lift in a dwelling provides the equivalent accessibility to the convenience of locating the kitchen, main bedroom, bathroom and toilet on the entry level.

• There are no constraints on this site, including the topography of the site, that warrant a variation of the accessibility standard.

62. We are not satisfied that the applicant’s written request to contravene the accessibility standard in SEPP Seniors Housing has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.

Conclusion

63. The standards in SEPP Seniors Housing are amenable to variation under cl 4.6 of LEP 2015 because cl 4.6 can be applied to another environmental planning instrument, at cl 4.6(2); and because there is no express exclusion of the development standards in cll 40 and 41 of SEPP Seniors Housing to the operation of cl 4.6, as envisaged by cl 4.6(2), “this clause does not apply to a development standard that is expressly excluded from the operation of this clause”.

64. The applicant’s cl 4.6 written request to contravene the site frontage development standard in SEPP Seniors Housing has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.

65. The applicant’s cl 4.6 written request to contravene the accessibility standard in SEPP Seniors Housing has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.

66. Clause 4.6(4) of LEP 2015 establishes preconditions that must be satisfied before the Court, exercising the functions of a consent authority, can exercise the power to grant development consent. As we have determined that those pre-conditions have not been met, there is no power to grant development consent to the proposal. Consequently, it is not necessary to determine the remaining contentions.

Orders

67. The orders of the Court are:

1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits U, V and X, subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed.

2. The appeal is dismissed.

3. Development Application No. 0402/17 for a seniors housing development of 14 self-contained dwellings at 102 and 104 Bannockburn Road, 2 Reely Street, Pymble and 83 Bobbin Head Road, Turramurra, is refused.

4. The exhibits, other than Exhibits 1, 11, A, U, V and X, are returned.

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Susan O’Neill and Tim Horton

Commissioners of the Court

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Decision last updated: 14 November 2018