Stanford Jones Pty Ltd v Ku-ring-gai Council

[2024] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stanford Jones Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1491

Hearing dates:

Conciliation conference on 2 August 2024

Date of orders:

14 August 2024

Decision date:

14 August 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away in the agreed sum of $22,000 within 28 days of these orders being made.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application number DA0185/23 for the demolition of existing structures and construction of five independent living units at 20 Memorial Avenue, St Ives, known as Lot 6 DP 26832, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – independent living units – seniors housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Ku-ring-gai Local Environmental Plan 2015 cll 4.3, 4.4, 5.10, 6.1, 6.3

State Environmental Planning Policy (Housing) 2021, Pt 5, Div 3, ss 79, 81, 82, 84, 85, 93, 95, 96, 97, 108, Sch 8

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Ku-ring-gai Community Participation Plan 2020

NSW Department of Planning and Environment, Seniors Housing Design Guide, November 2023

Category:

Principal judgment

Parties:

Stanford Jones Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
D Tyrrell (Solicitor) (Applicant)
L Finn (Solicitor) (Respondent)

Solicitors:
Tyrrell’s Planning Law (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2023/232448

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of DA0185/23 which seeks consent for the demolition of existing structures and construction of five independent living units, as seniors housing pursuant to Pt 5 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), at 20 Memorial Avenue, St Ives, Lot 6 in DP 26832.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 August 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Council agreed to the applicant amending the development application. These amendments include:

1. Reconfigured parking and bin store layout.

2. Alterations to internal unit layouts.

3. Additional setbacks and privacy treatments to Villa 5.

4. Provision of communal open space.

5. Submission of updated arborist report, BASIX certificate, survey, and stormwater and civil engineering plans.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified in a jurisdictional note. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The development application was adequately notified in accordance with the Ku-ring-gai Community Participation Plan 2020 from 31 May to 30 June 2023, during which time one submission was received. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in this submission.

9. The development application seeks to construct five independent living units as in-fill self-care housing, a form of seniors housing. Under s 82 of the Housing SEPP, in-fill self-care housing is defined as:

… seniors housing consisting of at least 2 independent living units and at which none of the following services are provided on the site—

(a)  meals,

(b)  cleaning services,

(c)  personal care,

(d)  nursing care.

10. The Ku-ring-gai Local Environmental Plan 2015 (KLEP) Dictionary defines ‘independent living unit’ as follows:

independent living unit means a dwelling or part of a building, whether or not attached to another dwelling—

(a)  used to house seniors or people with a disability, and

(b)  containing private facilities for cooking, sleeping and bathing, and

(c)  where clothes washing facilities or other facilities for use in connection with the dwelling or part of a building may be provided on a shared basis,

but does not include a hostel.

Note—

Independent living units are a type of seniors housing—see the definition of that term in this Dictionary.

11. Part 5 of the Housing SEPP allows for the provision of seniors housing on land zoned for urban purposes. Pursuant to s 79, Pt 5 of the Housing SEPP applies to land that is zoned R2 Low Density Residential, and pursuant to s 81, development for the purposes of seniors housing may be carried out with development consent.

12. The subject site is zoned R2 Low Density Residential under the KLEP and therefore, pursuant to the provisions of the Housing SEPP, the proposed development is permitted with consent. Further, from the parties’ submission, I accept that the proposed development is consistent with the objectives of this zone.

13. Pursuant to KLEP cl 4.3, a maximum building height of 9.5m applies to the subject site. The proposed development complies with this development standard as demonstrated by the amended drawing ‘Elevations & Sections’, DA04 rev I by Gelder Group Architects.

14. KLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.3:1, however pursuant to s 108(2)(c) of the Housing SEPP, the non-discretionary standard for FSR is 0.5:1. The FSR for this proposed development is 0.49:1, which complies with this requirement.

15. The site is not identified as a heritage item, nor located within a heritage conservation area pursuant to cl 5.10 of the KLEP.

16. Pursuant to KLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. Based on the parties’ submission, the Statement of Environmental Effects (SEE) by Minto Planning Services Pty Ltd dated 11 April 2023, and the architectural drawing ‘Elevations & Sections’, DA04 rev I, I accept that the proposed works are not likely to lower the water table below 1 metre Australian Height Datum. I therefore accept that the development application does not generate a requirement for an acid sulfate soils management plan and that the requirements of KLEP cl 6.1 are met.

17. Following the reclassification of an existing mature tree on site by the parties’ arboricultural experts, an area that was mapped as environmentally sensitive land is no longer mapped as such, and as a result the site is not considered to contain any land of biodiversity significance. Based on the amended landscape design by Paul Scrivener Landscape, dated 15 July 2024, and the parties’ submission, I accept that the requirements for biodiversity protection as set out in KLEP cl 6.3(4) are met with the proposed development.

18. Part 5 Div 3 of the Housing SEPP relevantly establishes development standards for seniors housing. From the parties’ submission and the information contained in the development application as amended, I accept the proposed development meets the requirements of s 84(2) in the following ways:

1. The site has an area of 2237m² (s 84(2)(a)).

2. The site frontage measured at the building line is greater than 20m (drawing DA03 rev I by Gelder Group Architects) (s 84(2)(b)).

3. The building height will be less than 9.5m (s 84(2)(c)(i)).

4. There will be no servicing equipment in the roofs (ss 84(2)(c)(ii) and 84(3)).

5. The second storeys are set back from the side and rear boundaries as required by s 84(2)(c)(iii) (drawing DA04 rev I by Gelder Group Architects).

19. Pursuant to s 85 of the Housing SEPP, from the parties’ submission, the SEE and the information provided in the Access Report prepared by Lindsay Perry Access, I accept that the development standards for independent living units, as set out in this section, are met.

20. Pursuant to the requirements for access to facilities and services as set out in s 93 of the Housing SEPP, from the parties’ submission and the SEE I accept that the requirements of this provision are met with the proposed development and its proximity to several bus routes, and that a suitable access pathway as required by s 93(4) is provided to these bus stops.

21. From the parties’ submission and the information in the SEE, I accept that both a reticulated water system and sewage system are available for the site, in accordance with the requirements of Housing SEPP s 95.

22. The site is not identified as, or near to, bushfire prone land (Housing SEPP s 96).

23. From the parties’ submission and the SEE p 18, l accept that the Seniors Housing Design Guide, November 2023, and the design principles for seniors housing set out in Sch 8 of the Housing SEPP have been adequately considered in the amended application as required by s 97 of the Housing SEPP.

24. From the parties’ submission and the information contained in the amended application, I accept that the development application meets all the non-discretionary development standards listed in s 108 of the Housing SEPP, and that the consent authority is not requiring more onerous standards for the matters listed.

25. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the SEE and the parties’ submission, I accept that the subject site has been historically used for residential purposes and there is no evidence of any potentially contaminating activities. I subsequently accept that the site is suitable for the intended, continued, residential use.

26. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to s 27 of the EPA Reg. Compliance with, and fulfilment of, the commitments within this certificate is further required through conditions of consent.

27. From the parties’ jurisdictional note and my consideration of the amended application, I accept that there are no further jurisdictional considerations that arise pursuant to s 4.15 of the EPA Act.

Conclusion

28. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

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

30. The Court notes that:

1. The Respondent has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA0185/23 to rely on the documents and further information specified below:

Plan No.	Revision No.	Plan Title	Drawn By	Dated
DA01	I	Site Analysis	Gelder Group Architects	26 June 2024
DA02	I	Site Plan	Gelder Group Architects	26 June 2024
DA03	I	Floor Plan	Gelder Group Architects	26 June 2024
DA04	I	Elevations and Sections	Gelder Group Architects	26 June 2024
DA05	I	Shadow Diagrams March	Gelder Group Architects	26 June 2024
DA06	I	Shadow Diagrams June	Gelder Group Architects	26 June 2024
DA07	I	Solar Access/Solar Study	Gelder Group Architects	26 June 2024
DA08	I	Area Calculations	Gelder Group Architects	26 June 2024
DA09	I	Cut and Fill Plan	Gelder Group Architects	26 June 2024
DA10	I	ESMP	Gelder Group Architects	26 June 2024
Sheet 1	G	Landscape Site Plan	Paul Scrivener Landscape	15 July 2024
Sheet 2	G	Planting Plan & Schedule	Paul Scrivener Landscape	15 July 2024
Sheet 3	G	Soil Areas Plan & Details	Paul Scrivener Landscape	15 July 2024
Sheet 4	G	Site Context	Paul Scrivener Landscape	15 July 2024
Sheet 5	G	BASIX Plan	Paul Scrivener Landscape	15 July 2024
D000	E	Cover Sheet	Rise Engineers	26 April 2024
D001	F	Erosion and Sediment Control Plan	Rise Engineers	26 April 2024
D010	G	Level 1 and Roof Stormwater Drainage Concept Plan	Rise Engineers	26 April 2024
D020	J	Ground Floor Stormwater Drainage Concept Plan	Rise Engineers	20 June 2024
D030	J	Ground Floor Stormwater Drainage Concept Plan Continued	Rise Engineers	20 June 2024
D040	F	Rainwater Tank and OSD Calculations and Details	Rise Engineers	26 April 2024
D050	D	Ocean Protect Stormfilter System Detention Tank Arrangement Specification Drawing	Rise Engineers	26 April 2024
D060	D	Ocean Protect Oceanguard Typical Arrangements Specification Drawing	Rise Engineers	26 April 2025
14050-1	A	Survey Plan	Tigo Survey Associates Pty Ltd	18 April 2024
Arboricultural Impact Assessment	Tree Survey	26 June 2024
Nationwide House Energy Rating Scheme – Multiple Class 1 – dwelling summary NatHERS Certificate No. 000527870	Nationwide House Energy Rating Scheme	29 May 2024
BASIX Certificate	Building Sustainability Index	16 July 2024
Waste Management Plan	Gelder Group Architects	23 March 2024
Response to Council Comments	Tree Survey	29 June 2024
Acoustic Report	Far West Consulting Engineers	17 March 2024

31. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away in the agreed sum of $22,000 within 28 days of these orders being made.

2. The appeal is upheld.

3. Development consent is granted to Development Application number DA0185/23 for the demolition of existing structures and construction of five independent living units at 20 Memorial Avenue, St Ives, known as Lot 6 DP 26832, subject to the conditions of consent in Annexure A.

E Washington

Commissioner of the Court

232448.23 Annexure A

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Decision last updated: 14 August 2024