WFM St Ives Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1333

Land and Environment Court

New South Wales

Medium Neutral Citation:

WFM St Ives Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1333

Hearing dates:

Conciliation conference held on 5 June and 22 July 2020

Date of orders:

30 July 2020

Decision date:

30 July 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) Leave is granted for the applicant to amend the application to rely on the amended and additional plans and documents referred to in Condition 1 of the conditions of consent at Annexure A.

(2) The applicant is to pay the respondent’s costs in the amount of $10,000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Development Application 0273/19 for the demolition of existing structures and construction of 18 self-contained dwellings for seniors or people with a disability, basement parking and associated site works at 14 Collins Road, St Ives, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – contravention of the development standard for a maximum height of 8m for seniors housing in a residential zone where residential flat buildings are not permitted

Legislation Cited:

Environmental Planning and Assessment Act 1979

Ku-ring-gai Local Environmental Plan 2015

Land and Environment Court Act 1979

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

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

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

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

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

Category:

Principal judgment

Parties:

WFM St Ives Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
L Finn (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2019/326564

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA0273/19 for the demolition of the existing structures and construction of 18 self-contained dwellings for seniors or people with a disability, basement parking and associated works (the proposal) at 14 Collins Road, St Ives (the site) by Ku-ring-gai Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 June and 22 July 2020. I presided over the conciliation conference.

3. 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.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 29(2) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors) and cl 4.6 of Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).

Planning framework

6. The application is made pursuant to SEPP Seniors.

7. The site is zoned R2 Low Density Residential pursuant to LEP 2015 (Land Zoning Map - Sheet LZN_ 012 of LEP 2015). The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

8. Residential flat buildings are prohibited in the R2 zone. Clause 40(4) of the SEPP Seniors is in the following terms:

(4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted—

(a) the height of all buildings in the proposed development must be 8 metres or less, and

Note. Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a).

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and

Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.

(c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

9. If the density and scale of the proposal when expressed as a FSR is 0.5:1 or less, a consent authority (or the Court exercising the functions of the consent authority) must not refuse consent to the application, pursuant to cl 50(b) of the SEPP Seniors. It is the applicant’s position that the proposal has a FSR of 0.5:1.

Contravention of the maximum height development standard under cl 40(4) of the SEPP Seniors

10. The proposal has a maximum height of 9.8m above existing ground level. There is a breach of the maximum height development standard under cl 40(4) of the SEPP Seniors for sections of the roof ridges and roofs in Building A (front building) and Building B (rear building).

11. The building forms adjacent to the boundaries are no greater than two storeys and only single storey building forms are within the rear 25% of the site.

12. The applicant provided a written request pursuant to cl 4.6 of the LEP 2015 prepared by Planning Ingenuity and dated 23 July 2020, seeking to justify the contravention of the development standard in the SEPP Seniors for the maximum height of buildings of 8m for a seniors living development in a residential zone where residential flat buildings are not permitted.

13. Clause 4.6(4) of the LEP 2015 establishes preconditions that must be satisfied before a consent authority, or the Court exercising the functions of a consent authority, can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless–

(a) the consent authority is satisfied that–

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

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

The applicant’s written request to contravene the height of buildings development standard

15. The first opinion of satisfaction required by cl 4.6(4)(a)(i) of the LEP 2015 is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

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

16. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of the LEP 2015 have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

17. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [42]-[51] (“Wehbe”) and repeated in Initial Action at [17]-[21]:

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

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

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

4. the development standard has been abandoned by the Council;

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

18. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

19. The applicant’s written request justifies the contravention of the 8m height development standard under cl 40(4) of the SEPP Seniors on the basis that compliance is unreasonable or unnecessary for the following reasons:

• The exceedance of the height development standard is a function of the gabled roofs which are an architectural feature of the proposal. The internal rooms have raked ceilings beneath the gabled roof forms which will substantially enhance the internal amenity of those upper level apartments, including by providing solar access and ventilation.

• The bulk and scale of the proposal is compatible with the character of the streetscape and locality, including the prevailing building heights along Collins Road. The gabled roofs are an architectural cue to the domestic character of the proposal.

• The breach of the development standard does not result in any amenity impacts on adjoining development.

• The building envelopes of the proposal are a design in response to the site constraint to preserve the Sydney blue gum trees on the site with the front setback and the central communal open space area.

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

21. I am satisfied, pursuant to cl 4.6(4)(a)(i) of the LEP 2015, that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the development standard as a justified response to the site’s constraints and the architectural expression of the proposal. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

22. The second opinion of satisfaction in cl 4.6(4)(a)(ii) of the LEP 2015 is that the proposal will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).

23. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.

Conclusion

24. I am satisfied that the proposal is compatible with the surrounding land uses, having regard to the natural environment, the services, and infrastructure that are available to meet the demands arising from the proposal and the impact that the bulk, scale, built form and character of the proposal will have on the locality.

Orders

25. The orders of the Court are:

1. Leave is granted for the applicant to amend the application to rely on the amended and additional plans and documents referred to in Condition 1 of the conditions of consent at Annexure A.

2. The applicant is to pay the respondent’s costs in the amount of $10,000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application 0273/19 for the demolition of existing structures and construction of 18 self-contained dwellings for seniors or people with a disability, basement parking and associated site works at 14 Collins Road, St Ives, is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (353380, pdf)

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Decision last updated: 30 July 2020