Retire Australia (Lane Cove) Pty Ltd v Lane Cove Municipal Council - [2025] NSWLEC 1020

Land and Environment Court

New South Wales

Medium Neutral Citation: Retire Australia (Lane Cove) Pty Ltd v Lane Cove Municipal Council [2025] NSWLEC 1020
Hearing dates: 11-15 November 2024
Date of orders: 21 January 2025
Decision date: 21 January 2025
Jurisdiction: Class 1
Before: Horton C
Decision:
The court directs that parties confer and, within 14 days of these orders, file agreed conditions of consent in respect of:
(1) Accommodation being restricted to those persons identified at s 88 of State Environmental Planning Policy (Housing) 2021,
(2) Amendments to Stormwater Plans, consistent with advice provided by Northrop Consulting Engineers, dated 14 November 2024.

Catchwords:
DEVELOPMENT APPLICATION: seniors living development in R4 High Density Residential zone – whether contravention of height and floor space ratio justified – whether impact on heritage item is acceptable -

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Environmental Planning and Assessment Regulation 2021, ss 29, 38, 228A
Lane Cove Local Environmental Plan 2009, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.1A
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 10, Pt 10.3, Div 2, ss 6.6, 10.19
State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, Ch 4, ss 3, 82, 84, 85, 87, 88, 93, 97, 108, 144, 145, 147, 148, Sch 4, 8, 9
State Environmental Planning Policy (Infrastructure) 2007, cl 107
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.3, 2.119, 2.120, 2.122, Sch 3

Texts Cited:
Apartment Design Guide, July 2015
Australian Standard AS2890.1:2004, March 2004
Lane Cove Development Control Plan 2010
RTA Guide to Traffic Generating Developments, October 2002
Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004

Category: Principal judgment
Parties: Retire Australia (Lane Cove) Pty Ltd (Applicant)
Lane Cove Municipal Council (Respondent)
Representation:
Counsel:
M Astill (Applicant)
T To (Respondent)
Solicitors:
Norton Rose Fulbright (Applicant)
Lane Cove Municipal Council (Respondent)

File Number(s): 2023/307136
Publication restriction: Nil

Judgment

COMMISSIONER: For many years, a retirement village has operated on the eastern side of Burns Bay Road, in Lane Cove, just south of Cope Street. Historically, the site has provided care and accommodation in 52 self-contained dwellings, and in a historic two-storey villa formerly known as ‘Walhalla’, on two lots of land collectively known as 40A Cope Street Lane Cove.
The Applicant in these proceedings, Retire Australia (Lane Cove) Pty Ltd, proposes the demolition of all existing buildings on the site, and the construction of two buildings, joined at the lower levels. Forty-two independent living units are proposed over three levels of basement containing car parking and communal spaces, with landscaping and associated works.
The site has a frontage to Burns Bay Road, and to a public road to the rear known as Caroline Chisholm Lane. Pedestrian access is proposed from both frontages, while vehicular access is proposed from Caroline Chisholm Lane.
It is sufficient at this stage to note the site is burdened by, and benefits from, a number of easements and rights of carriageway, that are primarily concentrated in Caroline Chisholm Lane, which serves as a shared driveway for the properties at No 1 Caroline Chisholm Lane and the subject site. A driveway to the adjacent residential apartment development at 38 Cope Street, known as Figtree Grove, runs parallel to Caroline Chisholm Laneway. The result, when viewed from Cope Street, is the appearance of two driveways separated by a form of verge or median, in which parallel parking is permitted.
Development Application No DA134/2022 (the DA) was lodged with Lane Cove Municipal Council (the Council) on 28 October 2022, refused on 22 August 2023, and Retire Australia filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 27 September 2023.
The development is characterised as seniors living, which is a use prohibited under the Land Use Table in the Lane Cove Local Environmental Plan (LCLEP). However, the prohibition is overridden by State Environmental Planning Policy (Housing) 2021 which deems such development permissible on the land.

Public submissions

The proceedings commenced with an onsite view, during which the Court, in the company of counsel, representatives of Retire Australia, and experts heard oral submissions from residents of the immediate area.
The oral submissions are reflective of the written submissions, contained in Council’s bundle of submissions (Exhibit 2), and may be summarised to include the following:

Traffic congestion, access, safety and parking.

Overshadowing of adjoining properties.

Privacy impacts arising from overlooking.

Visual bulk and scale.

The Court was also taken to the following properties by the owners and occupants:

Unit 10/42-48 Cope Street, including to private open space to the south.

Unit 4/1 Caroline Chisholm Lane, including on to the balcony that forms the private open space.

Unit 2/278 Burns Bay Road, including to the rear, north-facing private open space.

I also note that the representative of the strata plan at 1 Caroline Chisholm Lane helpfully identified areas on hardstand surfaces to the east and south of the subject site on which markings were said to indicate the location of certain rights of way and other easements.

The proposed height and FSR exceed the relevant standards

The site is located wholly within an area designated by the LCLEP as R4 High Density Residential.
The site consists of two lots. Lot 120 occupies the approximate western half of the site, while Lot 51 occupies the eastern half fronting the Laneway. Development standards in respect of height and FSR vary between the two lots.
In describing those controls for height and FSR, it is also necessary to explain the effect of certain provisions within Housing SEPP on those standards contained within the LCLEP.
A height standard of 18m applies to Lot 120 to the western half, and a height of 12m applies to Lot 51 on the eastern half, according to the relevant map at cl 4.3(2) of the LCLEP. However, s 87(2)(c) of the Housing SEPP permits additional height of 3.8m, subject to certain other standards being satisfied, including FSR.
The FSR map at cl 4.4(2) of the LCLEP permits a FSR of 1.7:1 on Lot 120, and 0.8:1 on Lot 51. However, once again, when the bonus at s 87 of the Housing SEPP is applied, the maximum FSR permitted on Lot 120 is 1.955:1 and 0.92:1 for Lot 51.
At the commencement of the hearing, the Council advised the Court it does not press a contention in respect of the contravention of the height permitted under s 87(2)(c) of the Housing SEPP, notwithstanding an exceedance by the proposal at the lift overrun on Building B, on Lot 51 to the east of the site.
The proposed development also exceeds the FSR permitted on Lot 51, achieving an FSR of 1.12:1, which is a variation otherwise expressed as 348.1m².
As the height and FSR standards to be varied are those derived from s 87(2)(c) of the Housing SEPP, the underlying objectives of the standard and objectives of the zone are identical and so it is appropriate for the variations to be considered together.
A written request prepared in accordance with cl 4.6 of the LCLEP authored by Mr Peter Strudwick and dated 14 October 2024 (Exhibit F, Tab 2) seeks to justify the contravention of both the height and FSR standard.
I note at this point that the proposal also contravenes a further provision of the Housing SEPP, for which a separate and additional written request is prepared. For ease of distinction, I will refer to this written request as the First Written Request.
The First Written Request describes the height exceedance as limited to the lift overrun on Building B, and the FSR exceedance as limited to the floor space within Basement level 2 and 3, where communal activities and services are located.

Whether compliance is unreasonable or unnecessary

The First Written Request relies on what is known as ‘Wehbe 1’ to assert that compliance with the standard at s 87(2)(c) of the Housing SEPP is unreasonable or unnecessary in the circumstances of this case as the objectives of the standard are achieved notwithstanding the non-compliance in height and FSR.
The objectives of the relevant standard are derived firstly from the FSR standard at cl 4.4 of the LCLEP, as it is the FSR standard to which the ‘bonus’ in s 87(2)(c) is applied. This objective is as follows:

(a) to ensure that the bulk and scale of development is compatible with the character of the locality.

The FSR objective is said to be achieved in three ways:

Firstly, the height, bulk and scale of the proposal is broken up into two distinct forms and the height and bulk is mediated by a low-level podium, in contrast to recently constructed examples that are 6-8 storeys in height. Such examples present larger overall footprints and bulkier built form without the mediating effect of a podium.

Building B is a tiered built form with a change in materials at the upper levels to reduce the perception of visual bulk and aid compatibility with, for example, the housing estate to the east of the site, which I understand to be a reference to ‘Figtree Grove’.

Building B also provides areas of deep soil to its northern and southern setbacks to allow landscaping of a greater scale that is currently the case, and so contributes to the landscape character of the locality.

Next, the objectives of the height standard at cl 4.3 of the LCLEP, to which the height ‘bonus’ at s 87 is applied, are:

(a)  to ensure development allows for reasonable solar access to existing buildings and public areas,
(b)  to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable,
(c)  to seek alternative design solutions in order to maximise the potential sunlight for the public domain,
(d)  to relate development to topography.

The objectives are said to be achieved because, in respect of objective (a), the provisions for solar access in the Apartment Design Guide (ADG) are achieved, as shown in a Table on architectural plan DA-603 (Exhibit F, Tab 3). The next objective at objective (b) is said not to apply as the site is not at a zone interface beyond that of Burns Bay Road which is zoned SP2 Infrastructure, but is consistent with the objective in any event because of setbacks that comply with the ADG, deep soil and landscape planting and the tiered setback of the built form at the upper levels. Objective (c) is likewise not relevant as there are no key or principal areas of the public domain to which alternative design solutions would apply. Finally, objective (d) is achieved by firstly separating Building A and B, which optimises solar access to southern neighbours that are on a downward slope from the subject site, and secondly by ensuring compatibility between Building B and the housing estate to the east, known as Figtree Grove.
Additionally, the First Written Request asserts the proposal is also consistent with the principles of the Housing SEPP, at s 3, (the Principles) that includes:

(a)  enabling the development of diverse housing types, including purpose-built rental housing,
(b)  encouraging the development of housing that will meet the needs of more vulnerable members of the community, including very low to moderate income households, seniors and people with a disability,
(c)  ensuring new housing development provides residents with a reasonable level of amenity,
(d)  promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services,
(e)  minimising adverse climate and environmental impacts of new housing development,
(f)  reinforcing the importance of designing housing in a way that reflects and enhances its locality,
(g)  supporting short-term rental accommodation as a home-sharing activity and contributor to local economies, while managing the social and environmental impacts from this use,
(h)  mitigating the loss of existing affordable rental housing.

The Principles are said to be achieved in the following ways:

The proposal increases the provision of diverse housing types that allows the existing community to age in place, and cater to the demand for seniors housing in the local area. Instead, strict compliance will either reduce the yield, or the range of social benefits via communal facilities intended to serve seniors or people with a disability.

The degree or level of amenity afforded to future residents is reasonable and appropriate, in part because of the facilities that occupy Basement Level 2 and 3, and without adversely affecting the amenity of surrounding residents. To the extent the lift overrun exceeds the height permitted on the site, it will not be visible from either Burns Bay Road or the Laneway, and does not cause a shadow impact.

Locating the proposed development on the site of existing seniors housing delivers housing of such a kind in locations clearly addressing demand for such accommodation in the Lane Cove area, and where high-frequency bus services are available.

The First Written Request then also sets out grounds it considers sufficient to justify the contravening of both the applicable height and FSR standards, in accordance with cl 4.6(3)(b) of the LCLEP, that may be summarised as follows:

Firstly, aside from the non-compliances in height and FSR, the proposal is otherwise generally compliant with relevant controls and the built form may be regarded as a suitable design for its surrounding context. In the case of the height exceedance, the non-compliance is limited to a footprint of 3m x 6m, required to service the levels of Building B, and is setback from the southern boundary of the subject site by 14.5m.

Secondly, the minor exceedance of FSR standard is an efficient, economic and orderly use of the land in development that otherwise exceeds the setbacks required to the east and south to allow generous landscape planting and mitigate adverse impacts such as privacy and visual bulk to neighbouring properties.

Thirdly, the degree of solar access available to neighbouring properties to the south demonstrates the bulk and scale is appropriate and compatible with existing development in the area because of the tiered setbacks and variety in materials used.

Fourthly, the height exceedance is, in part, due to the height of the Level 1 slab that extends to form the porte cochere. The height provides clearance for a service vehicle to attend the substation proposed in the north east corner of the site. The degree of exceedance can be reduced by relocating the substation to the Burns Bay Road frontage. However, this alternative was dismissed based on advice that access to a substation in this location would require the removal of a greater portion of the heritage wall. Alternatively, a step could be introduced into the level 1 floorplate which is considered sub optimal for seniors living development.

Fifthly, it is possible to re-locate the communal facilities located in Basement 3 of Building B to the west where addition of the floorspace on Lot 120 would not result in an exceedance. However, the First Written Request argues against this relocation for two reasons that are essentially operational. Firstly, by locating the facilities under the smaller building, more residents of the development are encouraged to traverse communal areas when seeking to utilise the facilities. Secondly, as the staff of the facility are based in Building B, there is better oversight and assistance.

Expert evidence

Mr Montgomery is of the view that the First Written Request does not adequately make out the grounds on which compliance is unreasonable or unnecessary because of concerns he continues to hold for the degree of solar access to residents of 1 Caroline Chisholm Lane, and because the site adjoins another zone and so privacy and visual impacts are heightened.
Retire Australia argues that the separation of the development into two buildings separated by communal open space on a lower podium provides solar access to windows and private open space to the units at 1 Caroline Chisholm Lane.
However, the Council submits the solar access analysis set out in the table on DA 603 cannot be accepted as it does not correlate to what is depicted in the sun eye diagrams. Put another way, the 3D views taken from the position of the sun in the sky at intervals between 9am and 3pm depict, in some cases, an area likely to be less than 1m² being received to living areas, or not at all, despite the table identifying sunlight being received.
Of particular interest to the Council is whether the following design guidance under Objective 4A-1 is achieved:

To maximise the benefit to residents of direct sunlight within living rooms and private open spaces, a minimum of 1m² of direct sunlight, measured at 1m above floor level, is achieved for at least 15 minutes

I note here that the guidance does not dictate how 1m² of direct sunlight is measured. In opting not to so do, it is assumed that 1m² may be any series of multiples to achieve that area, and not be achieved only by a 1m x 1m format. Rather, presumably an area of 2m x 0.5m might provide 1m² of sunlight or any other multiple that totals 1m².
It would appear from the sun eye diagrams that a long, narrow slot is achieved at certain times during the day that Mr Strudwick believes to equate to 1m², albeit not at 1m above floor level.
Furthermore, while considerable interest was generated by the table on DA-603, nowhere does the table itself identify as an underlying assumption that the timeframes designated are times during which an area of 1m² of sunlight is achieved. Rather, both the table and elevational studies do no more than indicate a period during which sunlight, of whatever magnitude or quantum, is received.
It is nevertheless obvious from the sun eye diagrams that openings to certain living areas at 1 Caroline Chisholm Lane do not receive sunlight currently at certain times of the day, and will not in the event development of the sort proposed proceeds, but through no fault of the proposal. Instead, the depth of private open space on balconies to the north of living areas clearly shade those openings, while those balconies receive sunlight.
I agree with Mr Montgomery that the real focus of the ADG in circumstances such as this is found at Objective 3B-2 of the ADG that requires overshadowing to be minimised during mid winter. The design guidance provided in support of the objectives advises that living areas, private open space and communal open space should receive solar access in accordance with Sections 3D Communal and public open space, and 4A Solar and daylight access.
Objective 4A-1 of the ADG is:

“to optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space.”

Mr Montgomery asserts the upshot of the first design criteria under Objective 4A-1 is to require 2 hours of sunlight to 70% of units in both 1 Caroline Chisholm Lane and 278 Burns Bay Road, notwithstanding his own view that a longer duration is preferable.
The table at DA-603 states that 75% of units to 278 Burns Bay Road receive 2 hours of sunlight, and 80% of units to 1 Caroline Chisholm Lane receive the same.
The design guidance at [33] specifies the requirement of 15 minutes of sunlight to an area of 1m², at 1m above the floor level. Also contained in the design guidance is a statement that achieving the design criteria may not be possible on some sites, such as south facing sloping sites. While presumably a reference to achieving the first design criteria under objective 4A-1, it may be extended to the challenge of achieving the first design criteria where adjoining properties to the south are not only downslope but, in both cases, consist of units that are below natural ground line when measured at the boundary. That is, where the southern neighbours are set lower by virtue of being somewhat ‘dug in’ to their sites.

Mr Montgomery prefers a greater setback to the southern boundary of the subject site to conform to guidance in the ADG for minimum setbacks to be exceeded where affected sites are to the south or on a downward slope, as is the case here. While the proposal has adopted the greater setback of 9m at Level 2 and above, Mr Montgomery prefers 12m and notes ground floor balconies to south facing units of the proposal encroach within this to observe a setback of 6m.
In respect of the environmental planning grounds summarised at [29], the Council submits the majority of the grounds merely promote the benefits of the development as a whole, and not the particular aspect that is the subject of the exceedance. To the extent such grounds address the particular aspect of the exceedance, only those two at [29(5)] may be said to be directly relevant, namely;

That the facilities require a particular location for reasons of social interaction, and

For reasons of surveillance and personal safety and reassurance.

In respect of the first, the Council asserts that social interaction can occur wherever the facilities are located, because such interaction can occur within the facilities themselves. That is, while the First Written Request argues that the locating of the facilities under Building B draws the greater proportion of residents through the ground floor and Level 1 communal areas, and past reception to access the facilities, interaction of the same kind can be generated within the gym, sauna or swimming pool if located under Building A.
In respect of the second, the Council also questions why it is not possible for surveillance to occur within Building A, or even where it is proposed, but for a form of access passage to be provided between Building A and Building B.
While in most residential flat buildings, the concept of social interaction between residents may be a matter of some nuance and discretion, I accept that development for the purposes of housing for seniors or people with a disability shifts the impetus for such social interaction away from being a matter of choice by those with agency, to something intentional with value that comes from maintaining social connection and togetherness. As such, I understand the role played by staff at reception in seniors living development to be more than that offered by a hotel or club, and for communal areas to be a place where informal surveillance by neighbours and staff might also play a role in welfare and wellbeing.
Next, I accept the ground advanced that regardless of where the basement containing the facilities is located makes not a lot of difference to the height, bulk, scale or visual impact of the development when viewed at any point from neighbouring properties or the public domain.
The Court was not provided any benefit in relocating the basement containing the facilities, nor any environmental disbenefit in it remaining where it is proposed. As it was put by Mr Montgomery, the difference is simply that if the basement, with the same area and containing the same functions, was located under Building A rather than Building B “you wouldn’t be over-developing the site”.
The site comprises two lots. The FSR of Lot 120 is 1.57:1, which is less than that permitted by cl 4.4 of the LCLEP, let alone the bonus permitted by s 87 of the Housing SEPP which permits 1.955:1. The FSR proposed on Lot 51 involves an exceedance that is less than half the ‘shortfall’ on Lot 120. So understood, the proposal is not an overdevelopment, in my view.

The First Written Request is upheld.

I accept the argument put forward in the First Written Request that the proposed development observes setbacks to the south that are greater than those required by the ADG. I also accept that the separation of built form into two primary building forms, identified as Building A and Building B serves to provide direct sunlight to living areas and private open space for a period of 2 hours, and so minimise the extent of overshadowing to adjoining properties at 1 Caroline Chisholm Lane and 278 Burns Bay Road.
I also accept that sun eye diagrams contained in Exhibit H and Exhibit O, demonstrate that late amendments to remove built form from units on Level 1 to the south of the proposal provide Unit 2/278 Burns bay Road with more than 1m² of sunlight for a period greater than 15 minutes in mid winter.
For the three reasons set out above, I accept that overshadowing of neighbouring properties is minimised during mid winter, and so the proposed development also achieves the objective at cl 4.3(1)(a) of the LCLEP to allow for reasonable solar access.
On the basis of the setbacks provided to the side boundaries, I also accept that the proposal ensures privacy and visual impacts are reasonable to neighbouring properties, consistent with objective cl 4.3(1)(b) of the LCLEP. While the residents at 42-48 Cope Street seek an additional setback from that proposed, the proposal for a 6m setback to the northern boundary of the subject site is consistent with Figure 3F.6 of the ADG which shows visual privacy is achieved between habitable spaces where a setback of 6m is provided on the subject site. Furthermore, I note the balconies to units in Building B have been located to the east and west to avoid direct interface with the boundary shared with 42-48 Cope Street. The interface to the southern boundary is also acceptable given the proposed development has a 9m setback from Level 1 and above, and additionally, is separated from living areas and private open space by the driveway servicing 1 Caroline Chisholm Lane which further extends the visual separation.
I also accept that the single objective of the FSR standard at cl 4.4(1)(a) is also achieved by the separation of the built form into two buildings, linked by a podium that creates built form that is not unlike that evident in Figtree Grove, and certainly of lesser bulk and scale to that of the Emeranta Apartments in the Waterview development to the south of the site. As such, I accept the proposal is of a bulk and scale that is compatible with the character of the locality.
For the reasons above, I am satisfied the First Written Request has demonstrated that compliance with the height and FSR standards is unreasonable or unnecessary because the objectives of those standards are achieved, notwithstanding the non-compliance in terms of height and FSR.
I am also satisfied that the environmental planning grounds contained in the First Written Request are sufficient to justify the contravention of the height and FSR standard as I accept the grounds set out at [29] in respect of height, and because that the FSR could be made to comply, without any effect evident or change in the height, bulk or scale of the development. It advances nothing to relocate the basement containing facilities so that development, when understood against an unseen lot layout, achieves compliance when the same undertaken located in the position proposed performs the same or better function when the purpose of the development for which consent is sought is understood - that is, housing for seniors or people with a disability.
While the First Written Request correctly identifies the site being located in the R4 zone, it does not address the objectives for development in the R4 zone. Clause 4.6(4)(a)(ii) requires the consent authority, or the Court on appeal, to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard, and the objectives for development in the relevant zone.
The relevant objectives are:

•  To provide for the housing needs of the community within a high density residential environment.
•  To provide a variety of housing types within a high density residential environment.
•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.
•  To provide for a high concentration of housing with good access to transport, services and facilities.
•  To ensure that the existing amenity of residences in the neighbourhood is respected.
•  To avoid the isolation of sites resulting from site amalgamation.
•  To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

I am satisfied that the proposed development is consistent with the first four objectives by virtue of the purpose for which development is proposed, in a zone that seeks high density residential development, and which is located close to regular public transport services along Burns Bay Road and Cope Street. On the basis of the proposed setbacks, and the separation of built form to permit sunlight to properties to the south, I am also satisfied that the proposal respects the existing amenity of residences in the neighbourhood, and I see no evidence that sites in the vicinity are isolated by the proposal.
Turning to whether the proposed development ensures landscaping is maintained and enhanced as a major element in the residential environment requires consideration of competing positions on the impact of the development on existing landscape features of the site, and the proposal for what Retire Australia considers to be enhancements.
A total of 33 trees currently stand on the site which the parties agree provides a substantial area of tree canopy. Additionally, five trees stand in Laneway road reserve.
The proposal seeks consent to remove 29 trees from the site, and 3 of those trees located in the Laneway. Two significant trees, 11 medium valued trees and one weed species are among those proposed to be removed.
The Council contends that the proposed development imposes unacceptable impacts upon mature trees and vegetation located on Site and on adjoining land, including Council land.
The impacts arise, according to the Council, due to a failure to observe the objectives for landscaping and tree preservation at Section J2.2 of the Lane Cove Development Control Plan 2010 (LCDCP) which includes, at objective 1:

“Existing medium and high value trees and canopy coverage shall be retained as assets and the building footprint designed to enable their retention. Pre-development consultation with Council is encouraged to avoid unnecessary clearing or damage to medium and high value trees.
…”

The parties identified the following experts in landscape and arboriculture to assist the Court on those matters relevant to such expertise:

Mr Guy Sturt, with landscape and arboricultural expertise on behalf of Retire Australia;

Mr Ted Webster with landscape expertise and Mr Robert Sutton with aboricultural expertise on behalf of the Council.

The relevant experts conferred in the preparation of a joint expert report on landscape (Exhibit 8), and on arboriculture (Exhibit 7 and Exhibit 9), and on both landscape and arboriculture (Exhibit 12). The arboricultural experts also directed to confer in respect of amendments tendered late in the proceedings, with the result being a supplementary joint expert report (Exhibit 19).
The experts agree the controls in respect of deep soil and landscaped area are achieved by the proposal, albeit with some area of disagreement as to the precise numerical figure to be relied upon, and that a tree replacement ratio of 1:1 is achieved in accordance with the LCDCP.
However, the experts are not agreed on the following:

Whether 65% of landscaped area is provided to the rear of the site.

Impact on significant trees T13 and T22.

Impact on trees to the Burns Bay Road frontage, Tree T15-T20.

I state here that as the site has frontages to both Burns Bay Road and to the Laneway, I accept the argument put by Retire Australia that it is reasonable to conclude the centre of the site to be the rear when both frontages are considered.

Tree 13 – the Port Jackson Fig

As it is put by Mr Sutton, Tree 13 (T13), a Port Jackson Fig, is more than a significant tree. It is an exceptional tree. It marks a gateway to Lane Cove, and all efforts to assure its ongoing health should be taken.
A Tree Impact Assessment Report prepared by Mr Guy Sturt dated 13 June 2024 (Tree Assessment) (Exhibit F, Tab 10) records T13 has a diameter at breast height (DBH) of 2.5m, resulting in a Tree Protection Zone (TPZ) radius of 15m, and a Vigour and Condition Class designation of ‘MGVG10’, denoting retention potential – medium – long term, according to the Table at A1.8 of the Tree Assessment.
On the basis of architectural plans filed with the Court at the commencement of the hearing, the experts agreed that the proposed incursion into the TPZ of T13 was 10.6% due to the location of the basement, and a further 6.5% encroachment due to paved pathways shown in an Impact Analysis Plan prepared by Sturt Noble (Exhibit F, Tab 10, Drawing ARB-2215-005).
The root zone of T13 has already been affected by development, with adjoining development at 278 Burns Bay Road encroaching into the TPZ and the SRZ when that development was constructed. An area of concrete hardstand currently covers a large area of the TPZ within the subject site, that is proposed to be removed and replaced with mulched garden bad.
Mr Sutton was concerned at the potential for any further impact to expose T13 to greater risk from wind, and other impacts so close to Burns Bay Road.
Additionally, the canopy or crown is proposed to be pruned to the north where Building A and T13 come into conflict, possibly from Level 3 and above given the extent of the canopy to T13.
Mr Sturt’s oral evidence is that canopy pruning is a common practice when some pruning of the TPZ is undertaken, such as when preparing a Port Jackson fig for transplanting, however investigation such as root mapping and a survey of the tree canopy to T13 to better understand the nature of the roots and branches that are potentially affected has not been undertaken.
Responsive to the evidence of the arboricultural experts, Retire Australia proposed amendments to move the southern wall of the basement further away from the root zone of T13, requiring amendments to the pedestrian entry from Burns Bay Road.
Amendments to the basement were depicted on a revised architectural plan DA-101 Revision 8 (Exhibit 0) which was tendered, unopposed, by Retire Australia. The arboriculture experts considered the amendments in a still further supplementary joint expert report (Exhibit 19), with the result being agreement that the proposed incursion into the TPZ of T13 by the basement is now limited to 1.4%, with an additional 6.5% due to a deck on piers located within the TPZ.
While Mr Sutton agrees the reduced encroachment is a better outcome, he maintains his concern at the lack of regard had to AS4970 that defines a TPZ to be a combination of not only protection the root zone, but also of the crown area. In particular, additional clearance is generally recommended to above ground parts of a tree.
Mr Sturt calculates the extent of pruning proposed to the canopy of T13 at 12.1% of the canopy. When considered in combination with the incursion into the root zone, and the size and resources within T13, Mr Sturt ‘s evidence is that the proposed incursion into T13’s TPZ is acceptable.
AS4970 considers an incursion of up to 10% in a TPZ to be classified as a minor impact on a tree. I regard the deck and piers comprising 6.5% of the incursion to be an incursion of a different kind to that resulting from excavation for a basement or the like, as there is generally scope to position piers with some latitude around tree roots, if such work is supervised by an arborist onsite.
I have balanced the area of existing concrete hardstand that currently covers a portion of the TPZ to T13 which is proposed to be removed, with the total incursion of the TPZ at the root zone and in the canopy and I accept Mr Sturt’s evidence that the scale and vigour of T13 suggest it is capable of such pruning. As such I find the proposed impact on T13 acceptable.

Tree T22 – Magnolia

A Magnolia tree, identified in the Tree Assessment as a Bull Bay Magnolia (T22), is likewise deemed significant and is proposed for removal due to the extent of incursion by the northern wall of the carpark basement.
The Encroachment Analysis contained within the Tree Assessment records an encroachment of 100% into the TPZ area of T22, and so concludes removal is necessary.
However, the arboricultural experts agree there is a potential that a low retaining wall to the south of T22 has acted as a natural barrier to the TPZ of T22, and that further investigation by root mapping would confirm or otherwise.
The experts prepared agreed conditions of consent in respect of tree preservation and landscaping works (Exhibit 19, pp 4-6), that now includes T22 in the schedule of trees agreed to be retained.

Tree T15-T20 – Burns Bay Road frontage

Six trees currently occupy the landscape setback to Burns Bay Road, identified in the Tree Assessment as Trees 15-20. Four trees are identified as Brushbox, and a fifth is identified as a Date Palm.
All are proposed for removal as a result of excavation proposed in the setback to Burns Bay Road to gain access to the site during construction.
The landscape plans propose the replacement of those trees proposed to be removed with four Queensland Brushbox, and one Weeping Lily Pily.
While the Council submits that a single two-way driveway may reduce the extent of excavation and tree removal in this area, as that matter is more an aspect of traffic and construction methodology, I consider those issues further at [124]-[149].
In my view it is appropriate at this point to return to the objectives for development in the R4 zone as the above is sufficient in my view to reach a conclusion that amendments made to the proposal are more than likely to result in the long term health and vigour of T13, and the potential for T22 to be retained. I also consider the agreement of the experts as to the replacement ratio of trees, and achievement of landscaped area and deep soil as affirming the objective of the R4 zone to ensure that landscaping is maintained and enhanced as a major element in the residential environment.
Accordingly, I am satisfied that the proposed development is consistent with the objectives of the relevant standards and of the R4 zone. As such, I am satisfied that the proposed development will be in the public interest because of that consistency.
Having regard to those matters at cl 4.6(5) of the LCLEP, I conclude the contravention does not raise any matter of significance for state or regional environmental planning, and that there is no demonstrable public benefit in maintaining the relevant standards for reasons set out above. As such, I accept the Secretary’s concurrence can be assumed and the First Written Request be upheld.

Whether traffic and parking impacts are acceptable

Parking provision

The proposed development accommodates parking for vehicles on two levels of basement. In the Traffic Assessment prepared by the traffic expert for Retire Australia, compliance with relevant standards for parking at Sch 4 of the Housing SEPP is asserted.
At para 10 of Mr Rogers’ amended Traffic and Parking assessment dated 24 June 2024 (June Assessment) (Exhibit F, Tab 15), the following requirements relevant to parking at Sch 4 of the Housing SEPP are cited:

i) at least 15% of the parking spaces must comply with AS/NZ 2890.6, and
ii) at least 50% of the parking spaces must –
comply with AS/NZ 2890.6 or
be at least 3.2m wide and have a level surface with a maximum gradient of 1:40 in any direction.

However, the excerpt of the standard is to a provision that applies today, and not to that that applicable at the time of lodgement of the DA.
The non-conformance was not identified in the Amended Statement of Facts and Contentions filed on 13 August 2024, and was not considered by the traffic experts in any of the joint expert reports prepared by Mr Tim Rogers, on behalf of Retire Australia and Mr Matthew McCarthy, on behalf of the Council. The experts conferred in the preparation of a joint expert report on those matters (Exhibit 6), a supplementary joint expert report (Exhibit 13), and a further supplementary expert report (Exhibit 18).

The experts agree that the 49 parking spaces proposed satisfies the non-discretionary standard at s 108(k) of the Housing SEPP (Exhibit 6, para 12), on the assumption that the provision incorporates parking for residents, staff and visitors. However, it is the size and layout of those parking spaces that is the subject of Second Written Request.
Section 85 of the Housing SEPP, then as now, precludes the grant of consent unless development comprising independent living units (ILU’s) complies with standards set out at Sch 4. Those standards in Sch 4 that were applicable at the time of lodgement are as follows:

5 Private car accommodation
If car parking (not being car parking for employees) is provided—
(a)  car parking spaces must comply with the requirements for parking for persons with a disability set out in AS 2890.6, and
(b)  10% of the total number of car parking spaces (or at least one space if there are fewer than 10 spaces) must be designed to enable the width of the spaces to be increased to 3.8 metres, and
(c)  any garage must have a power-operated door, or there must be a power point and an area for motor or control rods to enable a power-operated door to be installed at a later date.

Not all parking spaces proposed in the development comply with AS 2890.6. Nor are 10% of spaces capable of a width of 3.8m. A plan showing compliance with such a provision exists but is not relied upon.
On the fourth day of the hearing, Retire Australia relied upon a written request prepared by Urbis in accordance with cl 4.6 of the LCLEP and dated 13 November 2024 (Second Written Request) (Exhibit 9), that seeks to justify the contravention of the provision at Item 5, Sch 4 of the Housing SEPP.
The Second written request argues that compliance with underlying or inferred car parking standards is unreasonable or unnecessary in the circumstances of this case (cl 4.6(3)(a)). Absent stated objectives, the inferred objectives are expressed in the Second Written Request in the following terms:

“To ensure adequate accessible compliant spaces are provided to the incoming residential population of the ILU’s, representative of the accessibility needs.
To provide some flexibility in the provision of accessible car spaces in ILU developments by allowing for 3.8m wide spaces.”

The inferred objectives are said to be achieved in the following ways:

The proposal is for 42 ILU’s that can be expected to accommodate residents with a range of ages and differing mobility needs. Only a small proportion of residents or visitors to the site are likely to require fully accessible units so that it is unnecessary for every unit to comply with AS2890.6-2009.

Instead, 16% of parking spaces comply with AS2890.6-2009, having dimensions of 2.4m x 5.4m and an additional 2.4m shared zone.

In addition to these spaces, another 24 spaces are wider than the parking space size nominated, with a width of 3.2m.

While a width of 3.8m is not provided, the parking objectives are achieved by conforming to the parking standard that applies today.

I note here that no objection is taken by the Respondent’s traffic expert Mr McCarthy or the Council more broadly to the inferred objectives, and I also note that AS2890.6-2007 is helpfully contained it the Council’s Bundle of Supplementary documents (Exhibit 5, Tab 8).
Next, the environmental planning grounds advanced as sufficient to justify the contravention of the parking standard include:

While full compliance with the applicable standard is not achieved, 16% of spaces do comply with AS2890.6-2009.

Accessible spaces are strategically located adjacent to building entrances and elevators to minimise the distance necessary for residents with mobility issues to traverse, and are all covered for weather protection.

Safety features such as lighting and signage, and the width of pathways assist in making navigation easy and safe.

A designated drop off area at the building entrance allows for safe drop off and pick up of residents, obviating the need to travel to and from the basement car parking.

A dedicated minibus is also proposed to service the development, which has the effect of further reducing private vehicle use, and the need to navigate the basement car park.

Strict compliance with the standard applicable at the time would require an increase in the extent of basement that would reduce the area of landscape and deep soil, and would likely encroach on root systems of trees currently proposed to be retained.

I am satisfied that the Second Written Request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the LCLEP for the reasons set out in the Second Written Request. In particular I accept that the inferred objectives are achieved by conforming to the standard applicable today, and set out in Sch 4, and that the avoidance of further environmental impact to trees on the site and on adjoining sites is an environment planning ground sufficient to justify the contravention when the car parking requirements of the former standard is balanced against the objectives for development in the R4 zone to ensure that landscaping is maintained and enhanced as a major element in the residential environment.
As such I am also satisfied that the proposed development is consistent with the objectives of the standard and of the R4 zone, and is therefore in the public interest, pursuant cl 4.6(4)(a)(ii) of the LCLEP, and that no matter at cl 4.6(5) of the LCLEP would preclude the Secretary’s concurrence. Accordingly, the Second Written Request is upheld.
That said, the traffic experts vigorously dispute the number of car parking spaces required by the development, and the provision made for traffic in the vicinity of the site – both during construction, and during operation thereafter.
The Council contends that the proposal is deficient, firstly because the quantum of parking provided in the proposed basements is insufficient, and secondly because of the traffic-related impacts imposed on Burns Bay Road and the Laneway.
In turn, the traffic impacts are set out in terms of those impacts likely to result from construction, and thereafter throughout its ongoing operation.

Car parking provision is acceptable

As stated at [99], the Council agrees that the number of parking spaces complies with the requirement at s 108(k) of the Housing SEPP, and accepts that visitor parking is provided on site.
However, as the development comprises not only residential accommodation, but also other services requiring staff, there is potential for parking to spill over into surrounding streets that are already congested.
As no parking demand has been undertaken by Mr Rogers to account for staff, Mr McCarthy recommends parking rates be adopted from the LCDCP for this purpose, and for the same to be provided on site.
Furthermore, Mr McCarthy considers the parking space allocated to the mini bus to represent a car parking space. When added to the 49 spaces otherwise proposed, the development comprises 50 spaces, and so qualifies as traffic generating development according to Sch 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).
As the provision at s 108(k) of the Housing SEPP does not qualify or condition the ratio of parking other that by reference to the number of bedrooms provided in development comprising ILU’s, I understand the development to comply with the provision and so I am precluded from refusing the proposal on the basis of the parking provided by s 4.15(2) of the EPA Act. I also accept that staff required to service the development, including a manager(s), receptionist(s), cleaners, gardeners and the like may well travel to and from the site by public transport, as is not uncommon.
However, I accept Mr McCarthy’s logic that the parking space for the mini bus is a parking space that, when counted alongside the 49 spaces provided for residents and visitors, answers the description of traffic generating development.
Section 2.122 requires that applications for certain traffic generating development, as set out in Column 1 Schedule 3 of the policy be referred to TfNSW and that any submission from the TfNSW be considered prior to the determination of the application.
The application was referred to TfNSW and conditions provided by TfNSW are incorporated in to the without prejudice conditions of consent at Condition C1.
Section 2.122(4)(b)(ii) of the Transport SEPP also requires the consent authority, or the Court on appeal, to take into consideration the following:

(ii) the accessibility of the site concerned, including—
(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and
(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

I am of the view that consideration of those matters above also serves to consider the contentions pressed by the Council summarised at [110]-[111].

Traffic Impacts

In respect of traffic impacts, Mr McCarthy prefers construction access to be via Caroline Chisholm Lane over that of Burns Bay Road, as to do otherwise will compromise the safety, efficiency and ongoing operation of Burns Bay Road, being a busy, classified road.
Retire Australia proposes construction access to be provided from Burns Bay Road, and thereafter, operational access for vehicles would be via a widened Laneway connecting to Cope Street.

Construction related impacts

The Council submits that construction-related impacts are not a different or special kind of impact. Nor are they excluded from an evaluation of the likely impacts derived from development for which consent is sought.
In fact, the Interpretation provisions at s 2.3(3) of the Transport SEPP suggest that construction works, including temporary works and structures, are a part of development.
Section 2.119 stipulates that the consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that vehicular access to the land is provided by a road other than the classified road, and the safety, efficiency and ongoing operation of the classified road will not be adversely affected.
Likewise, s 2.122(4)(b)(ii) of the Transport SEPP requires the Court to consider any potential traffic safety, road congestion or parking implications of the development.
A Construction Traffic Management Plan (CTMP) dated 6 November 2024 explains and depicts the construction access described above. The CTMP proposes that access for enabling works on the site be via the Laneway. It is also relevant to record here that the enabling works include the removal of vegetation in the Laneway, and the construction of a new footpath to the western side.
Thereafter, two driveway crossings at the Burns Bay Road frontage are proposed for the inward and outward, left-in, left-out travel of construction vehicles, managed by traffic control devices, including people and remote-controlled boom gates.
Advice from Transport for NSW (TfNSW) supports the proposal (Exhibit 3, Tab 19) given the constraints placed on access for large vehicles by the limited width of the Laneway.
To facilitate such access, re-grading of the footpath to Burns Bay Road is proposed (Exhibit G), as is the temporary removal of a simple steel handrail located on the outward side of the footpath.
However, since receipt of the advice from TfNSW, Mr McCarthy believes amendments to propose a footpath in the Laneway has the effect of widening the Laneway by 1.5m. This addition, and the consequential removal of vegetation in the Laneway makes access for medium rigid vehicles (MRV) vehicles of up to 8.8m long possible during construction.
According to Mr McCarthy, providing access from the Laneway would remove a number of risks assessed as High in the Road Safety Audit prepared by Bitzios Consulting dated May 2024 (RSA) (Exhibit 15), and reiterated by Mr McCarthy in the joint expert report.
Mr McCarthy’s oral evidence is that while he agrees with the Road Safety Expert Statement (Exhibit F, Tab 17) that finds amendments made in response to the RSA to deem the resultant risks ‘acceptable’, that agreement does not extend to the risk of rear-end crash events on Burns Bay Road.
In particular, Mr McCarthy believes that the risk of rear-end crashes remains high, given the need for trucks entering the site to slow to a virtual stop, a risk deemed higher in the afternoon peak by Mr McCarthy. Furthermore, this slowing is likely to send a ‘shockwave’ though traffic on Burns Bay Road towards Penrose Street/Road.
That said, the experts agree that swept path diagrams now show such a turn into the site possible to achieve from the kerbside lane, without encroaching on the centre lane.
Mr Rogers also notes that most construction activity ends before the peak of afternoon traffic, mitigating the likely conflict.
The Council submits that surveys contained in the initial Traffic Impact Assessment prepared by Mr Rogers indicate high traffic flow with minimal opportunity for trucks exiting the site to enter Burns Bay Road. In Mr Rogers’ view, the Council’s understanding of the traffic flow considers the numbers alone, without factoring in such numbers are distributed across two lanes, resulting in gaps between vehicles of around 7 seconds, or greater if the distribution of vehicles is weighted to the centre lane as is conceivable.
Mr Rogers also believes those traffic management measures identified in response to the Road Safety Audit, and incorporated at Figure 19 of the CTMP to be appropriate to manage the risks present on Burns Bay Road, including:

Signage along Burns Bay Road, and in Cope Street.

Traffic controllers

Two, one-way driveways facilitating entry and exit of trucks from the site.

Mr Rogers acknowledges he has not assessed whether the efficiency and ongoing operation of Burns Bay Road will be affected because of the concurrence provided by TfNSW that did not raise objection to the proposal.
If access is to be provided to Burns Bay Road, the Council posits any access should not be in the form of two one-way driveways, but rather a centralised two-way driveway. Providing access in this way would reduce the impact on a long, low sandstone retaining wall that runs along the frontage of the site.
The wall is identified as an item of local heritage significance, dating from the 1920’s. Council seeks to avoid, or minimise impact to the stone wall.
While I consider heritage later in this decision, I note the plans and diagrams that support the CTMP at Exhibit K depict a number of stages in the construction program. While the focus of Council’s submissions are on Plan D2 (Exhibit K, Appendix 2), that plan depicts a circumstance at stage 3 when the site has been established such that construction vehicles can fully enter the site, execute a three-point turn, and exit in a forward direction.
However, during the enabling works stage, shown on Figures 3 and 4, the site is not so established, which prevents vehicles from moving deeper into the site. Instead, construction vehicles during the enabling works stage enter the site so that they remain parallel to the site frontage, and exit in a likewise forward fashion, akin to a Formula 1 ‘pit lane’.
In my view, the plans supporting the CTMP have clearly been prepared with evident care for the logistics and infrastructure referred to in the construction management plan (Exhibit K, Appendix A) and with regard to the site conditions that are proposed to change during the construction program. Swept paths are shown for medium and large rigid vehicles, as is the location of loading platforms, crane, soil stockpiles, site sheds and the like. Once again, a key aspect of these plans is the depiction of how the site conditions change between stages. On the basis of these plans, I accept that the manoeuvre shown on plan D2 is specific to this stage of work, prior to which vehicle movements are more limited to the ‘formula 1 pit lane’. The consequence of this is that the ‘formula 1 pit lane’ arrangement requires the one-way entry and exit driveways to the north and south of the Burns Bay Road frontage, which determines whether or not, or what portion, of the stone wall may be retained intact should construction traffic access be permitted from Burns Bay Road.
Returning now to the advice received from TfNSW (TfNSW Advice) (Exhibit 4, Tab 19), I consider the written statement dated 22 December 2023 to be detailed and particular to the site, set out in five items that includes:

Item 1 requires vehicular access from Burns Bay Road to be temporary for the construction period only, after which it must be replaced with kerb and getter to meet TfNSW requirements.

Item 2 provides advice on the removal and reinstatement of the pedestrian fence adjacent to the subject site.

Item 3 deals with the means by which any public utilities might need to be relocated, including preparing detailed civil design plans.

Item 4 requires a Construction Pedestrian Traffic Management Plan detailing the routes to be taken by construction vehicles, number of trucks, hours of operation, access arrangements and the proposed traffic control measures to be taken.

Item 5 requires that all construction vehicles must enter the site before stopping, and are to wholly contained within the site.

I accept the Council’s submission that construction traffic cannot be excised from consideration of the impacts likely to result from development. I also note Mr Roger’s admission that no assessment of the safety and efficiency of Burns Bay Road has been undertaken. However, I also place significant weight on the TfNSW Advice that shows evidence of a considered review of the options for access to this site, and in respect of the safety, efficiency and ongoing operation of the classified road. Reference is made in the advice to the following:

“TfNSW notes that construction access to the subject site is extremely restricted with the site’s frontage on the local road network being too narrow to accommodate certain heavy vehicles.”

For the reasons set out above, I am satisfied that construction access for medium and large rigid vehicles is not practicable or safe via the Laneway, either during enabling works or after. In forming this opinion, I have also sought to balance the logistical pragmatics of orderly and economic development of land with the genuine concerns of residents that rely on the Laneway for access on a daily basis, including for those times when emergency services are required.
It is also worthy of note that the CMP also proposes installation of site sheds required for construction to be part of Phase 1A of the enabling works, for which access is proposed via the Laneway. A condition of consent agreed between the parties limits the height of any vehicle or its load to 6m. This likely removes from consideration use of the Laneway for the installation of site sheds, and so the CTMP will require amendment – a reality anticipated by Condition B.5.T of the agreed conditions of consent in any event.
Secondly, I am also satisfied that the safety, efficiency and ongoing operation of Burns Bay Road will not be adversely affected given the TfNSW Advice summarised at [146], the traffic control measures proposed at [139], with which Sydney drivers have become somewhat familiar, and the design of the footpath crossing that allows access to the site without vehicles coming to a complete stop on Burns Bay Road, or when an agreed without prejudice condition of consent at condition C.16.EH is read, as a result of smoke or dust from the development, or the nature, volume or frequency of vehicles using Burns Bay Road, subject to conformity with the CTMP prepared by Mr Rogers.

Beyond the construction phase, the development will have no impact whatsoever on the ongoing operation of Burns Bay Road, given all vehicular access is proposed via the Laneway.
As such, I am satisfied of those matters about which I must be satisfied at s 2.119 (3) of the Transport SEPP. To the extent s 2.119(2)(c) requires satisfaction as to traffic noise, it is relevant here to note s 2.120 precludes the grant of consent unless the consent authority, or Court on appeal, is satisfied that appropriate measures will be taken to ensure that certain noise levels are not exceeded.
The DA Acoustic Report prepared by PKA Acoustic Consulting dated 11 June 2024 (Acoustic Report) (Exhibit F, Tab 9) is curious in that it identifies the long superseded provisions at cl 107 of State Environmental Planning Policy (Infrastructure) 2007 that was repealed on 1 January 2022. That said, the provisions to which the Acoustic Report is directed were transferred without amendment and have been found at s 2.120 of the Transport SEPP for a number of years. The Acoustic Report concludes that the development is capable of achieving the LAeq levels stipulated at s 2.120(3) of the Transport SEPP, subject to recommendations contained in Section 5 of the Acoustic Report, that nominate treatment for each of three zones. On the basis of those recommendations and the inclusion of conditions of consent to that effect, I am satisfied appropriate measures have and will be taken to ensure relevant sound levels are not exceeded.

Ongoing impacts

Once the development is constructed, Retire Australia proposes that vehicles seeking access to the site will use the Laneway to access a paved forecourt, with options to proceed down a ramp to basement parking, or to a porte cochere at the building entry and to exit once again into the Laneway via a dedicated one-way exit.
Mr Rogers considers the Laneway suited to such use due to the proposed widening of the Laneway, the low number of traffic movements and low speed of those movements, the lack of any crash history to suggest pre-existing issues, and the quality of sightlines between Cope Street and the site.
In the June Assessment, Mr Rogers proposes further measures for the proper function of the Laneway, including:

Provision of a minimum 3.6m wide carriageway between Cope Street and the subject site,

Widening of the laneway to 5m for the last 35m along the western frontage of the site;

Retention of the two speed humps currently in the Laneway; and

A give way sign at the southern end of the one-way section of the Laneway so that any northbound vehicle in the Laneway would give way to a southbound vehicle.

Mr McCarthy believes the length of the Laneway requires two-way passing of vehicles to avoid conflict from vehicles entering the Laneway from Cope Street, and once within the Laneway, consistent with Section 7.2.1 of the RTA Guide to Traffic Generating Developments 2002 or, perhaps less relevantly, with Australian Standard AS2890.1:2004.
In particular, Mr McCarthy’s concerns are the conflicts that can arise from poor sightlines that could result in opposing vehicles within the lane, requiring one to reverse back.
Diagrams prepared by Mr McCarthy demonstrate two-way passing he considers appropriate where the Laneway meets Cope Street.
Mr McCarthy’s diagrams have been incorporated into architectural plan DA-911 Revision 7, which also shows the extent of a 1.5m wide footpath now proposed to the Laneway.
For completeness, I note there is no aspect of the proposed development, following completion of construction, that disturbs the opinions of satisfaction set out at [147]-[153] as to development with a frontage to a classified road (s 2.119) or with the potential for impact of road noise or vibration on development adjacent to a classified road (s 2.120). Likewise, I am satisfied that the potential traffic safety, road congestion and parking implications of the development can be managed, subject to appropriate management during the construction phase, in accordance with s 2.122(4)(b)(ii) of the Transport SEPP.

Whether the impact on heritage significance is acceptable

As stated earlier, the stone wall along the Burns Bay Road frontage is a historic feature identified in Sch 5 of the LCLEP. It is helpful to add the wall is not limited to the frontage of the site, but extends for a distance of 266m from the intersection of Burns Bay Road and Cope Street to the north of the site, and further to the south and returns to the east.
Where a proposal has the potential to affect a heritage item, the Court is required to consider the effect of the proposed development on that heritage item, in accordance with cl 5.10 of the LCLEP.
I am assisted in considering the impact of the proposal on the stone wall by the Amended Heritage Impact Statement prepared by Umwelt, dated June 2024 (Amended HIS) (Exhibit F, Tab 14), and by the evidence of the heritage experts in this case; Ms Lisa Trueman on behalf of the Council, and Mr Brad Vale on behalf of Retire Australia who conferred in the preparation of a joint expert report (Exhibit 10).
The Amended HIS summarises the proposed effect on the stone wall to be twofold. At one level, an opening of approximately 1800mm wide is proposed to provide pedestrian access to the site. However, more significantly, the entire stone wall across the frontage of the site is also proposed to be documented, disassembled, stored and reconstructed at the conclusion of the works to provide construction access.
Ms Trueman, considers the removal of the stone wall to be contrary to heritage conservation principles found in the Burra Charter and the LCLEP.
However, if it is the case that construction traffic access can only be obtained from Burns Bay Road, Ms Trueman’s opinion is that only a small section of the wall should be removed to enable construction access, and such an opening should be demonstrated to be the minimum required.
That said, the experts concur that in the event the Court is minded to grant consent, the method by which it is proposed to disassemble and reconstruct is based on best practice and should be included as a condition of consent. Furthermore, the experts agree that an additional condition be imposed that a suitable qualified heritage consultant supervise and approve the demolition, numbering and removal of the wall, and its reconstruction and that the works should be undertaken by a highly experiences heritage stone mason approved by Council.
The Amended HIS also considers the proposed removal of existing trees that provide a landscaped backdrop to the stone wall, and the replacement of these trees with the same species, identified in the Landscape Plan as Queensland Brushbox.
The Council submits that as the State Heritage Inventory associates a row of oak trees with the Burns Bay Road frontage, (Amended HIS, p12) the removal of mature trees proposed from this frontage compromise the setting for the wall. As such, their removal is itself an impact on the heritage item.
The impact of the development described above is considered acceptable, according to the Amended HIS, subject to recommendations at Section 7.0.
As I find the ‘pit lane’ construction access proposed to Burns Bay Road acceptable, it follows that some impact on the sandstone wall is necessary. I note agreement between the experts at [168] as to the steps to be adopted for removal and reconstruction of the sandstone wall, albeit less the opening proposed for pedestrian access. I also note the trees proposed to be planted along the Burns Bay Road frontage that would appear suited to the location, given a similar species is in place today.
Having considered the impact of the proposed development on the sandstone wall and the outcome of a reconstructed wall fronting Burns Bay Road, I find the result acceptable in terms of cl 5.10(4) of the LCLEP.

The development is residential apartment development

Chapter 4 of the Housing SEPP applies to the proposal by virtue of s 144(2) and (3). Section 147 of the Housing SEPP requires that certain matters be considered, including relevantly, the design principles at Sch 9 of the Housing SEPP, the ADG and any advice received from a design review panel.
I note here that the DA was referred to Council’s Design Excellence Panel which I understand is constituted by the Council, and not the Minister under s 288A of the EPA Regulation. As such, ss 145(2) and s 147(1)(c) of the Housing SEPP does not apply.
The Respondent contends that adequate regard has not been had to Principle 9 – Aesthetics, found at Sch 9 of the Housing SEPP, that is in the following terms:

(1) Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure.
(2) Good design uses a variety of materials, colours and textures.
(3) The visual appearance of well designed residential apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape.

Retire Australia submits it is of some relevance that the Council raises no issue in the Amended Statement of Facts and Contentions, authored by Council’s planning expert, Mr Robert Montgomery, in respect of the Design Principles as to context and neighbourhood character, built form and scale or density.
No particulars in respect of Principle 9 other than the dimension and scale of columns, and the material and finish, and no contention is raised in respect of context and neighbourhood character, built form and scale or density.
That said, Mr Montgomery believes the proposal is contrary to the context and character of the area when regard is had to the Council’s carefully considered controls in the LCLEP. Such controls should be given weight as they are the starting point for establishing desired future character more than the Principles in the Housing SEPP which are ‘global’.
In particular, Mr Montgomery considers the porte cochere facing the Laneway to be larger, bigger and bulkier, with more glass and hardstand than would be expected of a residential flat building, and something more suited to ‘the high street than a laneway’.
Mr Damian Barker, urban design expert for Retire Australia, explains the porte cochere requires clearance of 3.8m for certain ambulances, and reflects aspects of the Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004 (Seniors Guidelines) such as covered entrances and legibility in wayfinding along the through-site link.
It must be said that the Laneway presents as an area of intense use by vehicles from three properties. Overall, the character of the Laneway is not that of a quiet residential street with garage doors and pedestrian gates. The area is dominated by hardstand. This is particularly so when the extent of hardstand to the site opposite the subject site, Figtree Grove, is understood.
The presentation therefore of the porte cochere and driveway on the subject site is not out of keeping with the context or the character of the Laneway in my view. Instead, the proposal offers a setback from the Laneway and modest landscaping that, when considered together, provide some relief to an otherwise congested context. As to the extent of glass, the proposal does not appear excessive in this regard and result in no unacceptable overlooking. Instead, it may provide some degree of casual surveillance to enhance pedestrian safety.
In addition to the evidence of the experts, I am also assisted in considering those matters required to be considered at ss 147 and 148 of the Housing SEPP by a statement prepared by Mr Simon Corda (Arch Reg No 12012) and dated 7 June 2024 (the Design Statement), in accordance with s 29 of the EPA Regulation. The Design Statement attests that Mr Corda directed the design of the proposal, and sets out the means by which the design principles at Sch 9 of the Housing SEPP have been applied in the proposed development, and how the objectives in Parts 3 and 4 of the ADG are addressed. (Exhibit F, Tab 7)
In addition to those requirements at ss 147 and 148 of the Housing SEPP, development containing independent living units must also conform to development standards applicable at the time the DA was lodged.
The proposal conforms to the relevant provisions at s 84 of the Housing SEPP, as the site area is greater than 1000m2, and the frontage of the site is greater than 20m when measured at the proposed building line to both the Burns Bay Road and Laneway setback.
Section 85 precludes the grant of consent for development containing independent living units unless the independent living unit complies with the relevant standards specified in Sch 4 of the Housing SEPP. Other than the parking provision dealt with at [95]-[108], no other aspect of those matters in Sch 4 are in contest.
Section 88 requires that development for the purpose of housing for seniors or people with a disability be for the accommodation of those people, or for people who live in the same household with seniors or people who have a disability, or staff employed to assist in the administration and provision of services to such housing. I note Council’s assessment report (Exhibit 4, folio 19) observes that it is usual practice for the requirement at s 88 to be reflected an operation condition of consent. Likewise, the assessment of requirements contained in the Statement of Environmental Effects prepared by Mr Strudwick (Exhibit F, Tab 2) also undertakes to deliver ILU’s that are strictly for the accommodation of seniors. While parties are agreed on the need and mechanism to satisfy the requirement at s 88 of the Housing SEPP, agreed conditions of consent do not provide as such.
Certain requirements for access to facilities and services, either on site or by a transport service, are set out at s 93 of the Housing SEPP. The Council’s assessment report (Exhibit 3, Tab 4) sets out the basis for compliance with such requirements which, when read in conjunction with the architectural plans (DA-910) and observations made at the onsite view, accord with the proposal for which consent is sought.
The development is for a kind of seniors housing, defined at s 82 of the Housing SEPP as in-fill self care housing given that meals, cleaning services, personal care or nursing care are not proposed to be provided on site. As such, the Court is required, at s 97(1) of the Housing SEPP, to consider the Seniors Living Guidelines, contained at Exhibit 4, Tab 39. I note Mr Barker’s evidence of regard being had to the Seniors Living Guidelines at [181], and do not otherwise find any contradiction.
Development for the purposes of seniors housing is also precluded by s 97(2) of the Housing SEPP unless the consent authority, or the Court on appeal, is satisfied that the design of the seniors housing demonstrates adequate consideration has been given to yet further design principles at Sch 8 of the Housing SEPP, which include:

Neighbourhood amenity and streetscape

Visual and Acoustic privacy

Solar access and design for climate

Stormwater

Crime prevention

Accessibility

Water Management

In my view, I have dealt with aspects of those design principles listed in Sch 8, but for Stormwater. It is sufficient here to state that the provisions in Sch 8 in respect of stormwater are evident in the proposal.
As stated at [101], s 108 contains development standards that, if complied with, prevent the consent authority from requiring more onerous standards in respect of those matters. Other than those aspects of height and FSR (subs (2)(a) and (c)), solar access (subs (2)(g)) and parking (subs (2)(k)), the Council does not contest conformity. I am satisfied that those non-discretionary standards as are relevant are achieved, for reasons stated earlier or, in the case of solar access to dwellings in the proposed development, for a duration of 2 hours by reference to the calculations at DA-500.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site, and s 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent. I have considered landscape and arboricultural issues earlier, and consider consent for the removal of those trees proposed to be removed, acceptable.
While not contended by the Council, the Court sought advice of the parties as to those jurisdictional preconditions to the grant of consent as are relevant to development within the Sydney Harbour Catchment.
The Court granted the joint application of the parties to provide written submissions on the matter after the close of proceedings. On 28 November 2024, the parties filed a joint jurisdictional note on the relevant provisions of the Biodiversity SEPP.
The parties agree that Ch 10 of the Biodiversity SEPP applies by virtue of the lodgement date, and that the subject site is within the Foreshores and Waterways Area. As such, the provisions of Part 10.3 are agreed to apply to the development.
The jurisdictional note is supported by a statement authored by Northrop dated 14 November 2024 (Northrop Statement) that addresses s 6.6 of the Biodiversity SEPP which is, by virtue of the agreement at [197], not applicable to the development. Nevertheless, the information provided in the Northrop Statement can read in support of those matters in Div 2 of the Biodiversity SEPP.
On the basis of the Northrop Statement, I accept that MUSIC modelling has been prepared to demonstrate an improvement in water quality so as to achieve a neutral or beneficial outcome in accordance with s 10.19(a). This is achieved by the adoption of firstly, surface inlet pits located in vehicular pavement areas to collect and manage gross pollutants and sediments from the driveway area, secondly, by a first flush device for gross pollutants prior to discharge of roof water into the onsite detention tank (OSD), and thirdly by proprietary filtration housed within the OSD to provide secondary treatment of roof and podium areas to further remove finer nutrients from runoff prior to discharge (OSD filtration).
The Northrop Advice states that the proposed OSD filtration is not currently depicted on the stormwater plans. Neither is its inclusion evident in the proposed of condition of consent agreed between the parties, at Condition A.10.E, which enumerates amendments required to be made to the drainage plans.
I accept the consideration evident in the Northrop Advice as to those matters required to be considered at s 10.19 of the Biodiversity SEPP, with the exception of the OSD filtration that is foreshadowed, and relied on to achieve a neutral or beneficial effect on the quality of water entering the waterways, but for which parties appear to have made no provision in the agreed without prejudice conditions of consent.
As such it is necessary for directions to be made for the Stormwater Plans, or the proposed conditions of consent to be amended to incorporate the Northrop Advice.
It is relevant to note here that the jurisdictional note cited at [196] is also supported by a written statement prepared by EI Australia dated 15 November 2024 (EI Australia Advice), which provides technical advice on potential groundwater and dewatering impacts. In summary, the EI Australia Advice concludes that the dissolved metal exceedances in groundwater do not rise above background conditions and so are unlikely to pose additional risks to receiving waters.

State Environmental Planning Policy (Resilience and Hazards) 2021

The Court must not consent to the carrying out of development on land unless it has considered whether the land is contaminated (s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021).

A Detailed Site Investigation (DSI) prepared by EI Australia dated 20 June 2023 (Exhibit C) identifies certain concentrations exceeded human health and ecological criteria for lead, carcinogenic compounds and hydrocarbons. That said, the DSI also concludes that the site can be made suitable for its future use subject to certain recommendations, including the preparation of a remedial action plan (RAP).
A RAP prepared by the same author and of the same date (Exhibit B) sets out procedures for remediation. On this basis, I accept the site can be made suitable for the purpose for which development is proposed to be carried out.

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

The application is accompanied by BASIX certificate (Certificate No. 1327735M_02 dated 24 June 2024), prepared by Northrop Consulting Engineers Pty Limited in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).
The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Other matters of jurisdiction

The site is not identified on the relevant map at cl 6.1(2) of the LCLEP as being classified Acid Sulfate Soil of any class.
Earthworks are proposed to achieve the basements level car parking and other resident amenities considered earlier in this decision. Having considered those matters at cl 6.1A(3) of the LCLEP, I find the following sufficient to conclude that the earthworks are acceptable:

The Stormwater Plans and Landscape Plans which do not suggest unreasonable disruption on the drainage patterns or soil stability of the site or its surrounds.

The architectural plans, including DA-911 which depicts the proposed earthworks to achieve the realignment of the Laneway convince me that the effect of the development on the likely use of the subject site, and amenity of adjoining properties, is likely to be an improved experience for pedestrians and those who choose to drive.

The DSI and RAP which deal with the quality of soil to be excavated.

The Stormwater Plans, and the enhanced filtration foreshadowed by the Northrop Advice avoid the potential for adverse impacts on the Sydney Harbour Catchment.

Public submissions are considered

In terms of privacy; the concerns of the occupants of 42-48 Cope Street relate to overlooking to a southern courtyard that abuts the boundary with the subject site. The property also enjoys a north facing courtyard at its entry, proximate to the principal living area. When this is considered, along with the setback and landscaping proposed to this boundary, it is my view the proposal adopts a reasonable and responsible response to the development at 42-48 Cope Street.
Concerns of residents to the east across the Laneway at Figtree Grove must be understood, in my view, in the context of the separation distance proposed between the sites, and the smaller window openings in Figtree Grove facing the Laneway, when compared with the large openings and north-facing balconies that are shielded from direct sightlines from the proposed development.
In terms of access along the Laneway, it must be noted that the land owned by the Strata Plan at 1 Caroline Chisholm Lane has potential for access to Burns Bay Road. An existing kerb crossing and vehicle entry exists today that, oddly, does not service 1 Caroline Chisholm Lane, but the residents of 278 Burns Bay Road instead. It would appear that a far easier means of access is available to the residents of 1 Caroline Chisholm Lane by connecting the undercroft parking currently used by the residents of 1 Caroline Chisholm Lane to the existing driveway entry that is already on their land. Such a circumstance would appear to entirely remove the concerns expressed by the representative of the Strata Plan at 1 Caroline Chisholm Lane, that includes a difficult manoeuvre at the top of the car park ramp, and then a sharp left turn into Caroline Chisholm Lane.

Conclusion

In the course of these proceedings, Retire Australia was granted leave to amend the development application before the Court by relying on the following amended plans and other documents:

A Revised Construction Traffic Management Plan prepared by Colston Budd Rogers & Kafes dated 6 November 2024

Amended architectural plans including DA-102, DA-101, DA-102, DA-103, DA-104, DA-300, DA-301, DA-400, DA-401, DA-402, DA-603.

Amended footpath regrading proposal to Burns Bay Road, prepared by BG&E Pty Limited

Amended Clause 4.6 request in respect of height and FSR, prepared by Urbis

Proposed footpath to Caroline Chisholm Lane, DA-911

Lane Cove Municipal Council, as the relevant consent authority, approved the amending of the development application by reason of those documents listed above, pursuant to s 38 of the EPA Regulations, subject to Retire Australia paying the Council’s costs thrown away as agreed or assessed, in accordance with s 8.15(3) of the EPA Act.
While I find the proposed development, as amended, may be deserving of the grant of consent subject to conditions of agreement, it is necessary to provide parties with the opportunity to amend the agreed without prejudice conditions of consent to correct what appears to be two oversights, in my view.
As stated at [188], parties agree that the development is for the accommodation of seniors in accordance with s 88 of the Housing SEPP, however, no provision has been made in the agreed conditions to this effect.
As stated at [201]-[202], parties are also in accord with Northrop Advice to the effect that OSD filtration will ensure a neutral or beneficial effect on the quality of water entering the waterways.
Accordingly, I direct that parties to confer further on those two matters set out above and file amended conditions of consent in accordance with directions that follow.

Directions

The court directs that parties confer and, within 14 days of these orders, file agreed conditions of consent in respect of:

Accommodation being restricted to those persons identified at s 88 of State Environmental Planning Policy (Housing) 2021,

Amendments to Stormwater Plans, consistent with advice provided by Northrop Consulting Engineers, dated 14 November 2024.

T Horton

Commissioner of the Court

**********

Decision last updated: 21 January 2025

Medium Neutral Citation:	Retire Australia (Lane Cove) Pty Ltd v Lane Cove Municipal Council [2025] NSWLEC 1020
Hearing dates:	11-15 November 2024
Date of orders:	21 January 2025
Decision date:	21 January 2025
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The court directs that parties confer and, within 14 days of these orders, file agreed conditions of consent in respect of: (1) Accommodation being restricted to those persons identified at s 88 of State Environmental Planning Policy (Housing) 2021, (2) Amendments to Stormwater Plans, consistent with advice provided by Northrop Consulting Engineers, dated 14 November 2024.
Catchwords:	DEVELOPMENT APPLICATION: seniors living development in R4 High Density Residential zone – whether contravention of height and floor space ratio justified – whether impact on heritage item is acceptable -
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38, 228A Lane Cove Local Environmental Plan 2009, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.1A State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 10, Pt 10.3, Div 2, ss 6.6, 10.19 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Ch 4, ss 3, 82, 84, 85, 87, 88, 93, 97, 108, 144, 145, 147, 148, Sch 4, 8, 9 State Environmental Planning Policy (Infrastructure) 2007, cl 107 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.3, 2.119, 2.120, 2.122, Sch 3
Texts Cited:	Apartment Design Guide, July 2015 Australian Standard AS2890.1:2004, March 2004 Lane Cove Development Control Plan 2010 RTA Guide to Traffic Generating Developments, October 2002 Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004
Category:	Principal judgment
Parties:	Retire Australia (Lane Cove) Pty Ltd (Applicant) Lane Cove Municipal Council (Respondent)
Representation:	Counsel: M Astill (Applicant) T To (Respondent) Solicitors: Norton Rose Fulbright (Applicant) Lane Cove Municipal Council (Respondent)
File Number(s):	2023/307136
Publication restriction:	Nil