Trustees of the Sisters of the Good Samaritan v Warringah Council

[2011] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:

Trustees of the Sisters of the Good Samaritan v Warringah Council [2011] NSWLEC 1181

Hearing dates:

30, 31 May, 1, and 3 June 2011

Decision date:

30 June 2011

Jurisdiction:

Class 1

Before:

Brown C
Morris C

Decision:

1. The appeal is dismissed.

2. Development Application No 2010/1494 for the construction of a Seniors Living Development made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP 2004) at Lots 808, 809, 812, 813 and 817 DP 752038 No. 70A Willandra Road, Narraweena is refused.

3. The exhibits, other than exhibits E, H and O are returned.

Catchwords:

DEVELOPMENT APPLICATION - housing for seniors or people with a disability - whether SEPP 2004 applies to the development - weight to be given to draft LEP - whether consistent with the desired future character of locality - visual impact - whether adequate riparian setback provided - stormwater quality

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Threatened Species Conservation Act 1995
Warringah Local Environmental Plan 2000
Draft Warringah Local Environmental Plan 2009

Cases Cited:

ACN 115 840 509 Pty Ltd v Kiama Municipal Council [2006] NSWLEC 151
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Cameron v Nambucca Council (1997) 95 LGERA 268
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289

Category:

Principal judgment

Parties:

Trustees of the Sisters of the Good Samaritan (Applicant)
Warringah Council (Respondent)

Representation:

Counsel
Mr A Galasso SC (Applicant)
Mr I Hemmings (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

11053 of 2010

Judgment

1. COMMISSIONERS: This is an appeal against the refusal of Development Application No 2010/1494 by the Sydney East Joint Regional Planning Panel for the construction of a development for seniors or people with a disability at Lots 808, 809, 812, 813 and 817 DP 752038, No. 70A Willandra Road, Narraweena (the site).

1. The contentions remaining after the submission of further information relate to:

• whether State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP2004) applies to the development;
• the weight to be given to draft Warringah Local Environmental Plan 2009 (the draft LEP);
• whether the development is consistent with the desired future character of the B2 Oxford Falls Locality in Warringah Local Environmental Plan 2000 (LEP 2000);
• whether the proposed development is acceptable in relation to visual impact, massing of built form, loss of vegetation; and
• whether an adequate riparian setback is provided.

1. The proposed development attracted a large number of public submissions, which were provided to the Court. The Court also heard a number of individuals on the morning of the site inspection. The submissions are similar to the contentions raised by the council, including the biodiversity and ecological issues which are addressed in the following paragraph.

1. The contention relating to the biodiversity and ecological issues was addressed by the applicant through the grant of a Biobanking statement by the Office of Environment and Heritage (OEH). In accordance with the provisions of s126I of the Threatened Species Conservation Act 1995 (TSC Act) the site has been certified and accordingly, no further assessment of the impact of the project on biodiversity values is required. The relevant clauses are:

126I Effect of biodiversity certification

(2) Development under Part 4 of the Planning Act Development on biodiversity certified land is taken, for the purposes of Part 4 of the Planning Act, to be development that is not likely to significantly affect any threatened species, population or ecological community under this Act, or its habitat.

(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Planning Act, is not required to take into consideration the likely impact of the development on biodiversity values (despite any provision of the Planning Act or any regulation or instrument made under that Act).

1. The contention relating to the biodiversity and ecological issues is still in issue as the area covered by the Biobanking statement was amended during the hearing and it was agreed that an amended Biobanking statement was required. The parties differed on how this should undertaken and this matter is addressed later in the judgment.

The site and the surrounding area

1. The site comprises five adjoining allotments on the eastern side of Lady Penrhyn Drive, two of which have frontage to the formed section of that road and three have frontage to the unmade Crown Road. It has an area of 17.46ha, is densely vegetated and contains no buildings. It falls to the east down from Lady Penrhyn Drive with an upper plateau area (approximately 8ha) containing various prominent rock features, native vegetation and a "hanging swamp". A rock escarpment approximately 8m high bisects the plateau from the steeper parts of the site. The site falls in excess of 40m from the roadway with the development footprint being contained within the plateau area with falls in the vicinity of 20m. Further works are required downslope to provide the necessary asset protection zones (APZ) to meet bushfire protection requirements.

1. Residential development is located opposite the southern portion of the site and contains detached two and three storey dwelling houses developed through the 1990's. Land to the north, northwest and east comprises natural bushland.

The proposed development

1. The development proposes the construction of a seniors living development comprising 51 serviced self care dwellings, an administration and assembly building, community building, private access roads, parking for 63 vehicles, associated landscaping, pathways asset protection zones and fire trails. The buildings and associated works (the construction zone) are located on the upper plateau area of approximately 4.01ha.

1. The area of the site to be used for an APZ and fire trails is approximately 4.0ha or a total site disturbance of 8.01ha (or 45.8% of the site). This area was increased during the hearing as a result of amended General Terms of Approval (GTA) issued by the Rural Fire Service (RFS) just prior to the hearing. The amended GTA provide for an APZ of 5.08ha (or 52% of the site). The APZ would comprise an inner and outer protection area, which requires the clearance of 80% of vegetation within the inner protection area and 70% in the outer protection area in order to provide no more than 20% and 30% cover respectively. The APZ areas extend between 45m and 100m from the construction zone. In addition, a fire trail is required around the southern perimeter of the construction zone connecting to the proposed eastern access road.

1. The proposed dwellings would contain 2 bedrooms, living area, amenities, garage or carport and landscaped private open space. Some dwellings also have a study. Facilities to be provided in the administration building include three consulting rooms, waiting lounge, accessible WC facilities and decks. The administration building would be located on the southern side of the main entry/exit road fronting Lady Penrhyn Drive.

1. A late amendment to the location of the community building was proposed by the applicant to address the APZ that was required on an adjoining property. The community building, is now located towards the western boundary of the site in a more central position. The building provides for lift access, a reception lounge, private lounge, open lounge, dining room, bar, kitchen, office, reception, cinema, gymnasium, pool and associated amenities and back of house areas.

1. Site access is proposed from Lady Penrhyn Drive with a roundabout to be constructed at its intersection with Supply Avenue. The intersection would service all dwellings with a main loop road around the proposed dwellings and two internal streets and driveway access providing access to the proposed dwellings.

Relevant planning controls

Warringah Local Environmental Plan 2000

1. The site falls within Locality B2 - Oxford Falls under LEP 2000. LEP 2000 identifies geographical locations that are further delineated based on the character of the land. The site adjoins Locality B8 - Red Hill. Each locality identifies development that is complying development, development that is permitted with the grant of development consent and prohibited development. Permitted development is divided into three categories; Category One, Category Two and Category Three (cl 14). Housing for seniors or people with a disability is a Category Two land use within Locality B2 if the development satisfies the land described in paragraph (c), otherwise the use is prohibited development. Paragraph (c) states:

c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29.

1. Clause 12 sets out the matters to be considered before consent can be granted for any development. Clause 12(1) provides that before granting consent the consent authority must be satisfied that the development is consistent with any relevant general principles of development control in Part 4. Clause 12(2) provides that before granting consent to any development the consent authority must be satisfied that the development will comply with the relevant requirements in Parts 2 and 3 (cl 12(2)(a)) and the development standards for the development as set out in the relevant Locality (cl 12(2)(b)). Clause 12(3) provides that before granting development consent for Category Two or Three development, the consent authority must be satisfied that the development is consistent with the Desired Future Character (DFC) described in the Locality, "but nothing in a description of desired future character creates a prohibition on the carrying out of development"(cl 12(3)(b)).

1. The DFC for the B2 Locality is:

The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridge tops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.

1. Clause 18(1) provides that built form will be controlled in accordance with the general principles of development control, the DFC of the Locality and the development standards set out in the Locality Statement. Clause 18(2) provides that strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the locality. Clause 18(3) provides that "nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control".

1. Clause 20 addresses whether a development can be approved if it does not comply with a development standard. Clause 20(1) provides that:

( 1) Notwithstanding clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.

1. Clause 29 provides grounds, which cannot be used to refuse applications for housing for older people or people with disabilities. These grounds address building height, density and scale, landscaped area, parking, visitor parking and private open space. There was agreement that the proposed development satisfies the requirements in cl 29.

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

1. The parties disagree as to whether SEPP 2004 applies to the proposed development however for the reasons set out in pars 31 to 41 we have concluded that SEPP 2004 does apply to the proposed development.

1. Clause 5(3) of SEPP2004 states:

(3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

1. Clause 17 limits the type of housing on land that adjoins land zoned for urban purposes to a hostel, a residential care facility or serviced self-care housing. The application is for serviced self-care housing.

1. The provisions of cl 24 of SEPP2004 for site compatibility statements would apply to the proposed development because the site is "land that adjoins land that is zoned primarily for urban purposes" (cl 24(1)(a)(i)) but is exempted from the provisions of this clause by way of clause 24(1A) as h ousing for older people or people with disabilities is permitted with consent pursuant to the provisions of LEP2000. Accordingly, the provisions of clause 29 of SEPP 2004 apply and state:

(1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) to which clause 24 does not apply.

Note. Clause 24 (1) sets out the development applications to which that clause applies.

(2) A consent authority, in determining a development application to which this clause applies, must take into consideration the criteria referred to in clause 25 (5) (b) (i), (iii) and (v).

(3) Nothing in this clause limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies.

1. The matters referred to in cl 25(5)(b)(i),(iii) and (v) must be considered in determining an application and state :

(b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria:

(i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development,

(iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision,

(v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development,.....

1. Clause 27 provides requirements for development identified on a bush fire prone land map and these requirements are addressed through the provision of GTA by the RFS.

1. Clause 32 states that consent must not be granted unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles in Division 2. Relevantly Clause 33 addresses Neighbourhood amenity and streetscape.

1. Clause 40 provides development standards in relation to minimum sizes and building height. There was agreement that the proposed development satisfies the standards in this clause.

1. Clause 50 provides standards that cannot be used to refuse development consent for self-contained dwellings. There was agreement that the proposed development satisfies the standards in this clause.

Draft Warringah Local Environmental Plan 2009

1. The draft LEP has been exhibited by the council and proposes to zone the land as E3 Environmental Management. Section 79C(1)(a)(ii) requires us to take into consideration any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority. Seniors housing is a use that is prohibited within the E3 Environmental management zone. The relevance of the draft LEP to the proposed development is addressed later in the judgment.

How should the application be considered?

1. The use of the site for seniors or people with a disability raises the question of the appropriate assessment framework considering that proposed development is permissible under both LEP 2000 and SEPP 2004 and each have different assessment criteria.

1. In our view, the question is answered by cl 5(3) of SEPP 2004 where it states that if SEPP 2004 is inconsistent with any other environmental planning instrument, SEPP 2004 prevails to the extent of the inconsistency. In this case, SEPP 2004 is the principal planning document for assessment although LEP 2000 still applies but only where there is no inconsistency with SEPP 2004.

Does SEPP 2004 apply?

The requirements

1. Clause 4 of SEPP 2004 states that:

This policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:

(a) development for the purpose of any of the following is permitted on the land:

(i) dwelling-houses,......

1. Clause 4(8) has particular application to land within the Warringah local government area and states:

For the purposes of this Policy, land to which Warringah Local Environmental Plan 2000 applies is taken to be land that is zoned primarily for urban purposes only if the land is located within any of the following localities under that Plan:

........

(h) B8 (Red Hill).....

1. There is no dispute between the parties that the southern portion of the site is located on the opposite side of Lady Penrhyn Drive to land within Locality B8 - Red Hill.

The submissions

1. Mr Hemmings submits that SEPP 2004 does not apply to the site. He acknowledges that part of the site, being that part, which has frontage to the formed section of Lady Penrhyn Drive (opposite Locality B8 Red Hill), does "adjoin" land that is zoned for urban purposes. He distinguishes this portion from the northern portion. He submits that the factual enquiry required by cl 4 of SEPP 2004 is not one that is directed to a consideration of whether there is any "part" of a boundary, or any "part" of the land (the subject of the development application) that adjoins the appropriately zoned land. Rather, he submits, the inquiry is directed towards the whole of the land, and accordingly, submits that the site is surrounded on four sides by land within the B2 locality; this being land not zoned for urban purposes

1. On a test of whether the land is "near to", "neighbouring on", "in sufficient proximity to" (being a reference to terms used in ACN 115 840 509 Pty Ltd v Kiama Municipal Council [2006] NSWLEC 151), it could only be said that there is a partial boundary compliance. On the facts of this case, Mr Hemmings says the site is not " land that adjoins land zoned primarily for urban purposes" as required by cl 4 of SEPP 2004.

1. Mr Galasso submits that SEPP 2004 applies as there is no requirement in cl 4 that every part of the site adjoin land zoned for urban purposes. He submits that interpretation must take a purposive approach and the clear purpose of the requirement that non urban land must adjoin urban land is to ensure that seniors housing developments are located "near to" or "neighbouring on" or "in sufficient proximity" to urban land. In the present case, the applicant concedes that the subject land adjoins land zoned for urban purposes and in those circumstances the site answers the description required by cl 4(4).

1. This is reinforced by the terms of cl 4(4) when compared to cl 4(5) which state:

( 4) Land that adjoins land zoned primarily for urban purposes

For the purposes of this Policy, land that adjoins land that is zoned primarily for urban purposes includes (but is not limited to) land that would directly adjoin land that is zoned primarily for urban purposes but for the presence of a public road to which there is direct vehicular and pedestrian access from the adjoining land.

(5) Application Policy to land zoned for special uses and the existing registered clubs

For the purposes of this Policy (and for the avoidance of doubt), a consent authority must not treat:

(a) land on which development for the purposes of special uses is permitted, or

(b) land that is being used for the purposes of an existing registered club,

as being land zoned primarily for urban purposes unless it is satisfied that most of the land that it adjoins is land zoned for urban purposes.

1. Mr Galasso submits that cl 4(5) refers specifically to "most of the land"; this being a higher test than required by cl cl 4(4) where no such limitation exists and supports his position that the site adjoins land zoned for urban purposes

Findings

1. In balancing the competing submissions, we prefer the conclusions of Mr Galasso. We agree that the terms used in cl 4(4) do not suggest that the whole site must adjoin land zoned for urban purposes. If the intent of cl 4(4) was that the whole site should adjoin land zoned for urban purposes, then similar (or more restrictive) terms to cl 4(5) could have been used. This, however is not the case.

1. In ACN 115 840 509 Pty Ltd , Preston CJ considered the same question and states [at pars 31 to 33]:

31 These cases of the Court of Appeal and this Court are consistent in holding that it is not necessary, in order for the subject land to answer the description of being land that "adjoins" land zoned primarily for urban purposes, to be conterminous with (that is, have a common boundary with) or be immediately adjoining the 2(a) Residential land. It is sufficient that the subject land is "near to" or is "neighbouring on" or is "in sufficient proximity to" the 2(a) Residential land which is land zoned primarily for urban purposes.

32 The determination of whether land answers the description of being land that "adjoins" within this meaning involves matters of fact and degree.

33 In my opinion, the facts of the present case do establish that the subject land is near to or neighbouring on or in sufficiently close proximity to land zoned primarily for urban purposes. My reasons accord with and I adopt the reasons given by the applicant, set out in paragraph 9 above.

1. In our opinion, we are satisfied that the land is "near to" or is "neighbouring on" or is "in sufficient proximity to" land zoned primarily for urban purposes; this being the land within Locality B8 - Red Hill. Consequently, SEPP 2004 applies to the proposed development.

The draft LEP

Background to the draft LEP

1. Expert town planning evidence was provided by Mr Player for the applicant and Ms Fadeer for the council. Warringah Council resolved on 13 March 2007 to convert LEP 2000 into the Standard Instrument format. The draft LEP was exhibited between 12 October and 30 December 2009 and zoned the site E3 - Environmental Management. Under this zoning, Seniors housing is a prohibited use and consequently, the provisions of clause 4(6) of SEPP2004 would exclude the application of SEPP 2004.

1. The draft LEP however includes savings provisions in clause 1.8A which states:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been determined before the commencement, the application must be determined as if this Plan had not commenced.

1. The documentation provided to the Court indicates that there has been considerable discussion between the council and the Department of Planning in relation to the suitability of the E3 - Environmental Management zone and its application to the site and the wider Oxford Falls Valley. In December 2010, it was suggested by the Departmental of Planning to the council that the matter should be a deferred matter, pending the completion of a number of studies by the council including its housing strategy, transport and accessibility, bushfire hazard, water quality, aquatic ecology and hydrology of the lagoon and its catchment, flora and fauna protection, visual analysis and satellite communication buffer zones. Such advice was based on recommendations of the Planning Assessment Commission (PAC), which had concluded that there was time to carry out those studies, as the land was not required in the short term for urban release

1. However, the latest advice provided during the hearing is an email from the Departmental of Planning, dated 31 May 2011 that indicated that the draft LEP is with Parliamentary Counsel and will then be sent to the Director General for final endorsement. The Departmental of Planning anticipates that the draft LEP will be made by the end of June 2011.

1. The experts agree that the preparation of the draft LEP is at an advanced stage however neither has sighted a draft s 59 Report from the Department of Planning to the Minister but both accept that it is the aim of the Department of Planning to have the draft LEP finalised by the end of June 2011.

1. Mr Player considers that there is little likelihood of the draft LEP being completed in that timeframe and there is no certainty that the Oxford Falls locality will be zoned E3 - Environmental Management. In his opinion, the site could be a deferred matter or zoned other than E3 - Environmental Management. Ms Fadeer considers that it is likely that the draft LEP will be made within the timeframe anticipated by the Department of Planning or within one month of that time, based on the considerable work that has been undertaken by the council and the Department of Planning. In her opinion, it is likely that the Director General will recommend to the Minister that the draft LEP plan be made without deferring any land from its operation and that the Oxford Falls Valley will be zoned E3 - Environmental Management.

Is the draft LEP immininent and certain?

1. The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower , Spigelman CJ states at pars 6 and 7 that:

6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.

7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

1. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states :

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).

31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.

32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.

33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.

34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):

Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.

35. His Honour further stated (at par [35]):

...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.

36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.

1. In our view, the questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, and if it is found to be imminent and certain, whether the proposal will undermine the expressed future planning objectives in the draft LEP.

1. On the question of whether the draft LEP is certain, we accept that the draft LEP is likely to be gazetted as it is well advanced in the plan making process. The experts agree that the preparation of the draft LEP is at an advanced stage. The difference in time of likely gazettal between Ms Fadeer and Mr Player is the end of June 2011 and around August 2011, respectively. Considering the time since the implementation of the draft LEP process (March 2007), even Mr Player's estimate must be regarded as imminent.

1. The question of certainty centres on whether the site (and the Oxford Falls Valley area) will be a deferred matter or zoned E3 - Environmental Management. We do not accept Mr Player's evidence that the site may be given some other zoning under the draft LEP as there is no evidence to support this proposition. We accept that over the time, the potential zoning of the site in the draft LEP has been discussed between the council and the Department of Planning, however as the finalisation of the draft LEP has drawn closer, the evidence suggests that the site is likely to be zoned E3 - Environmental Management rather than deferred. We base this conclusion on the most recent e-mail from the Departmental of Planning, dated 31 May 2011 (Ms Juliet Grant, Regional Director, Sydney East) in response to an e-mail from the council (Mr David Kerr, Manager Strategic Planning) on the same day.

1. The council's e-mail makes the following enquiry of the Department of Planning:

From your e-mail and our discussions, my understanding is that the draft Warringah LEP is with Parliamentary Counsel's Office and will be sent on to the Director General for final endorsement with it anticipated that the LEP will be made by the end of June 2011. I also understand that the matters of the Brookvale and Oxford Falls Valley (in respect of which deferral has previously been contemplated) are no longer proposed to be deferred and zones for these areas will be included in the draft LEP in accordance with the exhibited version (ie, E3 for Oxford Falls Valley).

I'd be grateful if you would confirm whether my understanding is correct

1. The response from the Department of Planning states:

David, that is certainly what we are working towards. But note that until they Minister has signed off on the dLEP, we cannot guarantee an outcome.

1. Prior to this e-mail, other e-mail correspondence on 8 April 2011 between the Department of Planning (Ms Sabina Miller) and the council (Ms Noo Porima) supports this conclusion and states:

This email is just to advise that land at Oxford Falls Valley, 638 Pittwater Road, Brookvale and the Brookvale Centre will now be included in the draft Warringah LEP 2011.

Would it be possible to amend the maps to put those areas back into the Plan.

1. From the evidence, we understand the reference to amending maps is a reference to the council including the site into the draft LEP as E3 - Environmental Management on the maps accompanying the draft LEP.

1. From the evidence, we are satisfied that there is a high level of certainty that the site will be zoned E3 - Environmental Management consistent with council's intentions for the site and the wider Oxford Falls Valley. The council's position in relation to the site and the land within the Oxford Falls Valley is that it seeks to protect the natural features and values.

1. In our opinion, the question of certainty is more critical than the issue of imminency in determining the weight that should be attributed to the draft LEP, particularly given the little differences in time frames provided by the experts. It would seem that the particular provisions of the draft LEP have greater bearing on the question of weight than when the draft LEP is finalised, subject of course to the finalisation being within a reasonable timeframe.

1. The next question is whether the proposed development will, as stated in Blackmore Design (at 35), in general terms be inconsistent with the expressed future planning objectives for the area. As Seniors housing is a prohibited development within the zone, we accept that there is a potential inconsistency although this by itself is not a reason to refuse the application because of the savings provisions in cl 1.8A. Further guidance on this question can be obtained from the zone objectives for the E3 - Environmental Management, which are:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To ensure that development, by way of its character, design, location and materials of construction, use integrated into the site and natural surroundings, complements and enhances the natural environment and has minimal visual impact..
• To protect and enhance the natural landscape by preserving remnant bushland and rock outcrops and by encouraging the spread of indigenous tree canopy.
• To protect and enhance visual quality by promoting dense bushland buffers adjacent to major traffic thoroughfares.

1. If the objectives for zone E3 - Environmental Management are considered collectively, the clear focus is protect and manage the natural qualities of the area but allow a limited range of developments that do not affect these natural qualities. The objectives also seek to "restore" and "enhance" the natural qualities of the area. If compared to the proposed development we can comfortably conclude that there is a fundamental inconsistency with the expressed future planning objectives for the area through the following:

• the proposed development is a prohibited use under the draft LEP,
• the natural qualities of the area, being its native vegetation and natural features, are unacceptably impacted on by the proposed development through the construction zone and the need to provide extensive APZs,
• the proposed development cannot "restore" and "enhance" the natural qualities of the area as the proposed landscaping is limited by the available area within the construction zone and the need to significantly reduce the native vegetation for the extensive APZs, and
• the proposed development will result in a dense urban form that is concentrated on one part of the site.

1. If the weight to be given to the draft LEP is considered against its imminency, certainty and consistency with the expressed future planning objectives for the area, we are satisfied that the draft LEP should be given determinative weight and as the proposed development will be so inconsistent with the character envisaged by the draft LEP, the application should be refused for this reason alone.

1. For completeness we will briefly deal with the other issues raised in the proceedings.

The existing and future character

1. Clause 32 of SEPP 2004 provides that consent must not be granted unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles in Division 2. Clause 33(a) addresses Neighbourhood amenity and streetscape and states:

The proposed development should:

(a) recognise the desirable elements of the locations current character (or, in the case of precincts undergoing transition, the described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and

1. Similar, but not identical questions are asked by cl 25(5)(b) and require a finding of compatibility with the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development (cl 25(5)(b)(i)) and the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development (cl 25(5)(b)(v)).

1. Clause 33(a) requires consideration in two separate instances. Firstly, the location's current character and secondly, if the area is undergoing transition, the desired future character described in local planning controls. In this case we have found that the draft LEP is imminent and certain and it follows that the location is appropriately considered as a precinct undergoing transition. If the proposed development is considered against the desirable elements (or in this case, the objectives of the E3 - Environmental Management zone) we can comfortably conclude that the proposed development does not have adequate regard to the principle in cl 33(a) for the reasons mentioned in par 60.

1. If we are incorrect in this approach, we propose to consider the application (as was done by the experts) against the B2 Locality as identifying the desirable elements of the locations current character. If considered under LEP 2000, there must be a positive finding of consistency with the B2 Locality for the application to be approved.

1. The relevant components of the B2 Locality can be summarised as:

• future development will be limited to low intensity, low impact non-housing uses,
• no new development is to be located on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway,

• the natural landscape including landforms and vegetation will be protected and, where possible, enhanced,
• buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms, and
• development will ensure that ecological values of natural watercourses are maintained.

1. The parties provided a range of expert evidence to address the different components of the B2 Locality, with some overlapping of the evidence on the different components.

The evidence - visual impact

1. Expert evidence in relation to visual impact was provided from Dr Lamb for the applicant and Mr Powe for the council. Both describe the present character of the site as an intact remnant bushland area with an interface with the B8 Locality, which they describe as a low density residential development of detached and attached residences. They state the B2 Locality is predominantly natural bushland with pockets of development along roads, such as the Wakehurst Parkway, Oxford Falls Road, Willandra Road and Forest Way. They agree that the development is satisfactory with regard to the visual interface with Lady Penrhyn Drive and while visible from the B8 Locality and Narrabeen Lagoon, they consider it will not have significant amenity impacts or impacts on views.

1. Both accept that the development is not on a ridgetop, however there are locations within the public and private domain of the visual catchment where, because of the viewing angle and topography, the development will be visible above part of the existing horizon. They conclude however, that from the majority of potential viewing locations, the development will not disrupt the existing horizon or skyline. They further agree that the removal of the vegetation in the APZ will increase the potential visibility of the site and the proposed buildings however the visibility of the proposed retaining walls will be minor and that the form and scale of the individual buildings are satisfactory.

1. Dr Lamb accepts that the character of the development is different in detail to the surrounding low residential development however that difference would not be evident from other similar developments, both existing and proposed. In his opinion, the development is compatible with adjacent development. As the development is a permissible use, this provides a reasonable expectation that substantial visual differences will occur between the undeveloped and natural character of the existing site and its proposed future. Dr Lamb states that in the context of the B2 Locality, the development will have only a minor impact on the scenic qualities of the locality.

1. Mr Powe expresses concern over the massing of the overall development built form. The plans indicate the close proximity of buildings to each other and the minimal set back of dwellings from the internal roadways. This results in little separation and presents the massing of built form, which will read as continuous from the surrounding residential areas to the east and north. This will be accentuated in the visual sense by the APZ requirements extending well past the built components of the proposal. The bushfire protection requirements significantly restrict the height and density of planting around the entire development area, and result in the exposure of the built form with little separation. The result in character of a development when viewed from the visible areas to the north and east will be one in which the built form is favoured over the existing natural landscape.

The evidence - low intensity and low impact/ natural vegetation

1. Mr Player provided town planning evidence for the applicant and Mr Piggott for the council. The experts agree that the development involves 21,800 cu m of cut and 6,600 cu m of fill requiring an export of approximately 11,950 cu m of material off site. There was also agreement by the experts that all vegetation within the construction zone will be removed although new landscaping will be provided. The effectiveness of this new landscaping however was in dispute between the parties.

1. Mr Player says that the visual character impact assessment should relate to the whole of the B2 Locality which is approximately 1,544ha and includes Beacon Hill and Frenchs Forest to the south; Narrabeen Lagoon and Elanora to the north; Cromer to the east; Belrose and Terrey Hills to the west and Oxford Falls and Garigal National Park towards the centre of the B2 locality. Applying this catchment, Mr Player concludes that the development is compatible with the surrounding land uses and that the proposal has been designed having regard to the opportunities and constraints of the natural and built environment of the site and its local context.

1. Mr Player states that the existing character of the Oxford Falls Valley locality, as a whole, will remain substantially unchanged despite the construction of the development and that it is inevitable that development of the site for any purpose will involve a change in character when viewed from the immediate vicinity of the site. He states that the development, with a very low floor space ratio (FSR) of 0.059:1 will ensure it is low intensity in terms of density and scale. With 12.92ha or 74% of the total site retained as deep soil native planting areas, this will result in a development that will have minimal impacts on the natural environmental features of the site, particularly fauna and flora habitat areas and the natural stormwater drainage system that forms part of the Narrabeen Lagoon Catchment .

1. Mr Player refers to the Biobanking Statement that has been issued by OEH which confirms that the development is not likely to significantly affect any threatened species or have any significant impacts on biodiversity values of the site and locality. He states that the development only involves the removal of 54 trees (as defined in the council's tree preservation i.e. trees over 5m in height and/or a canopy width of 10m) and the retention of 28 trees. The landscape concept plan provides for the planting of 205 new endemic trees, as well as a substantial number of shrubs and groundcover although he acknowledged that there will be thinning and removal of additional trees within the APZ management zones.

1. In addition, Mr Player regards the development as being "low impact" in that it will retain and protect areas of significant rock outcrops and the hanging swamp within the site, minimise disturbance of native bushland vegetation and will blend in with the colours and textures of the natural bushland landscape character of the locality.

1. Mr Piggot considers the visual extent of the development is unacceptable with a length around 400m, a width between 50-160m, located on an elevated plateau with surrounding APZ's as it will have significant and cumulative impacts on the visual catchment of the site. The proposal, in terms of area to be directly and indirectly impacted upon, is not compatible with the surrounding land uses. In his opinion, the bulk, scale, built from and character of the development will have an unacceptable impact on existing, approved and future uses of land in the vicinity of the development through the cumulative effect of the buildings, roads, site modification and vegetation removal.

1. Mr Piggot claims the development does not accord with either the current or future character of the area as the desirable elements of the location's current character are to maintain the present character, only allowing new development, which is low impact and low intensity, whilst protecting the natural environment. He does not consider the development is low impact or low intensity or that it has been designed or grouped in areas so as to minimise disturbance of vegetation and landforms as it is necessary to modify some 4 ha of existing vegetation for the buildings and related infrastructure including roads (or 5 ha for the amended APZ). Mr Piggott considers that the direct modification of approximately 8.02ha (or 9 ha for the amended APZ) of the site, through the construction zone and the areas required for APZ, supports the council's contention that the development has significant and adverse environmental impacts.

1. Mr Powe describes the development as a relatively standard residential development on a prominent and elevated site with sweeping views along the northern beaches designed to enable views to be provided from each dwelling. While Mr Powe considers that the individual building designs are acceptable, the massing of the overall development is unacceptable and will be viewed as having a character in which built form is favoured over the existing natural landscape and therefore, fails in terms of the DFC for the B2 Locality. Mr Powe considers that the development, which alters, in perpetuity, 50% of a large and prominent site comprised entirely of natural features does not meet the criteria of "low intensity, low impact" in relation to the natural environment and, in that context, is not compatible with the DFC for the B2 Locality.

1. Mr Powe considers that the landscape plans do not provide sufficient planting commensurate with the collective building bulk or the natural attributes of the site and its surrounds as expected and required in the B2 Locality due to the need to address bushfire issues.

The evidence - natural watercourse

1. Identification of the starting point of a watercourse on the site was the subject of debate leading into the hearing and was further investigated by Mr Shaw for the council and Dr Breen for the applicant during the hearing. The location and starting point of the watercourse is an important consideration in determining the necessary riparian zone along that waterway and how that zone impacts on the requirements of the RFS for the provision of the necessary APZ. This has the consequent impact of limiting development to the area outside the riparian zone and the ultimate development potential.

1. The evidence provided shows a buffer distance of between 51m and 71m is required from the top of the watercourse. The extent of that buffer zone has significant impacts on the location of a number of dwellings and, depending on its extent, will require, at the best, redesign of a number of dwellings and deletion of one, and at it worst, require the deletion of six dwellings (lots 35-37, 39, 44 and 51) and the possible redesign of three dwellings.

1. While no agreement was reached, the general location of the starting point of the watercourse was agreed and delineated on a plan that became Exhibit O. The development, for the purposes of the Water Management Act 2000, is integrated development and the applicant had not lodged the necessary controlled activity application to the OEH and accordingly, no GTA has been issued to identify the extent of works required to define the treatment of riparian zones along that waterway. The applicant urges the Court to allow the development subject to the deletion of these six lots as this is the likely maximum effect on the development by the riparian zone.

1. If there were no other reasons that warranted the refusal of the application, we would have adjourned the proceedings to allow the location the starting point of the watercourse to be determined, any modifications made to the layout of the proposed development and GTA prepared.

The evidence - stormwater

1. Evidence was provided by Mr Khoo for the council and Dr Phillips for the applicant. They agree that, after assessment of amended and additional documentation included in further design plans, the stormwater concerns regarding onsite stormwater detention system, stormwater quality management system and upstream overland flows raised by the council in contention 8 are addressed. On the basis of this evidence, the council no longer presses any stormwater issues.

Findings - existing and future character

1. If considered under LEP 2000, and for the development application the approved, there must be a finding of consistency with the DFC for the B2 Locality. In considering the competing evidence, we are satisfied that the proposed development is inconsistent with the DFC for the B2 Locality for a number of reasons. First, the extent of modification of the site necessitated through the cut and fill proposed, vegetation removal and management of the necessary APZ areas is consistent with the DFC, in that the proposed development does not protect " the natural landscape including landforms and vegetation".

1. Second, the concentration of the development on the plateau means that the footprint is a higher density and more intense development that those developments that currently adjoin the site. Whilst we accept that the development of a site for seniors housing would have some impact on the topography and vegetation of the site, we do not consider the development is "low impact" or "low intensity" and that the extent of vegetation removal and areas required for bushfire management is such that it does not "minimise disturbance of vegetation and landforms". We do not agree with Mr Player that the proposed development should be considered against the wider B2 Locality, as the appropriate assessment should be made against the more local visual catchment. Similarly, we do not agree with the evidence of Mr Lamb that that because the proposed development is a permissible use that this somehow gives the application increased reason for an approval. Clearly, the individual merits of the application determine whether approval should be granted.

1. Third, and while the development will not be on "ridge tops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway", the inability to minimise disturbance of vegetation and the massing of the proposed buildings will create an unacceptable and obvious man-made scar on the escarpment, which, in our view is unacceptable given the emphasis on the retention and enhancement of the natural qualities of the area, or in the words of Mr Powe, a character in which built form is favoured over the existing natural landscape. We do however agree that the design of the development is one that would blend with the colours and textures of the natural landscape.

Other issues

The amended Biobanking statement

1. During the proceedings, the extent of the asset protection zones required for bushfire purposes was increased when new GTA's were issued by the RFS. The area now required to be maintained as an APZ has increased to around 5ha. Accordingly, the Biobanking statement does not reflect the area of land required for the APZ and due to the late submission of the Biobanking statement, the affect of the additional loss of vegetation on the existing Biobanking statement was unknown.

1. Mr Galasso, for the applicant, submits that if the Court was minded to approve the application, the applicant should be provided opportunity to obtain a modified Biobanking statement. He advised that contact had been made with OEH and that a modified Biobanking statement could be obtained within two weeks.

1. Mr Hemmings, for the council, submits that until such time as the applicant had obtained a modified Biobanking statement, the Court cannot consent to the application. He submits that it is not a matter that can be dealt with by way of a deferred commencement condition, as there is either a need to assess the impacts of the development on biodiversity or to obtain an amended Biobanking statement. As neither has occurred, he submits that should the Court find there are no other reasons to refuse the application the Court could give the applicant the opportunity to obtain an amended Biobanking statement.

1. We agree with the submissions of Mr Hemmings and accept that it is not appropriate to issue a deferred commencement consent requiring modification of the Biobanking statement as it avoids the need to consider a requisite matter under s 79C(1) ( Cameron v Nambucca Council (1997) 95 LGERA 268 [at 275] and [276] )

Other approvals

1. The Court was taken to judgments in Beacon Hill Retirement Pty Limited v Warringah Council [2010] NSWLEC 1011 and Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310 in the consideration of the appeal. Beacon Hill Retirement is a previous appeal on the site of this application however the proposed development in that appeal is significantly different, as is the status of the draft LEP. Lipman Properties is an appeal that was upheld on the adjoining property however we are satisfied that the circumstances are different to the current appeal and that this judgment offers little, if any use in the assessment of the current appeal.

Orders

1. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 2010/1494 for the construction of a Seniors Living Development made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP 2004) at Lots 808, 809, 812, 813 and 817 DP 752038 No. 70A Willandra Road, Narraweena is refused.

3. The exhibits, other than exhibits E, H and O are returned.

G T Brown

Commissioner of the Court

Sue Morris

Commissioner of the Court

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Decision last updated: 04 July 2011