Wirrabara Village Pty Limited v The Hills Shire Council

[2018] NSWLEC 1187

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 1187
Hearing dates:	5-10 and 13 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: 1) The appeal is dismissed. 2) Development Application No. 944/2018/JP for a seniors housing development at 3-5 Pellitt Lane and 9 Wirrabara Road, Dural, is refused. 3) The exhibits, other than exhibit 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Seniors housing development; Site Compatibility Certificate issued by the Department of Planning and Environment; prohibited development; whether the site adjoins land zoned primarily for urban purposes; location and access to services; impacts on threatened species; bushfire risk; exceedance of the height of buildings development standard; amenity.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Biodiversity Conservation Act 2016
Cases Cited:	Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 MoDog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 Pepperwood Ridge Pty Limited v Newcastle City Council (2005) 142 LGERA 231 ACN 115 840 509 Pty Limited v Kiama Municipal Council (2006) 145 LGERA 147 Murlan Consulting Pty Limited v Ku-ring-gai Municipal Council [2007] NSWLEC 182 Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284 Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 Challenger Listed Investments Limited v Valuer General (No 2) [2015] NSWLEC 60
Category:	Principal judgment
Parties:	Wirrabara Village Pty Limited (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: Mr Craig Leggat SC (Applicant) Mr Turvey To barrister (Respondent)   Solicitors: Bartier Perry Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/27264
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 deemed refusal of Development Application No. 944/2018/JP for a seniors housing development consisting of a 72 bed residential aged care facility and 102 self-care dwellings, as well as community facilities and site works including the construction of private roads (the proposal) at 3-5 Pellitt Lane and 9 Wirrabara Road, Dural (the site) by The Hills Shire Council (the Council).

2. The hearing of this matter was expedited (Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6) so that it could be determined prior to the expiration on 18 June 2018 of the Site Compatibility Certificate (“SCC”) issued by the Department of Planning and Environment (“the Department”) on 19 June 2016 under cl 25(4)(a) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP(SH)”). As a result, the appeal was not subject to conciliation under the Land and Environment Court Act 1979 (“LEC Act”). At the commencement of the hearing, the applicant submitted that a new SCC in exactly the same terms as the current SCC had recently been issued by the Department and so a decision in this matter was no longer urgently sought by the applicant.

Amendments to the proposal

3. Leave was granted by the Court on 16 February 2018 for the applicant to rely on an amended proposal.

4. Leave was unopposed and granted by the Court during the hearing for the applicant to rely on a further amended proposal (exhibit B) subject to the applicant paying the respondent’s costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act, as agreed or assessed.

5. Leave was again sought, unopposed and granted during the hearing on the same costs basis for further amendments to the proposal, as follows:

• An amended plan prepared by the applicant’s bushfire expert indicating the asset protection zones (APZ) on either side of the riparian vegetation (exhibit C);

• In response to the agreed evidence of the bushfire experts, some of the public assembly functions within the community facility were relocated to a new building, identified as Building 1, to the east of the community facility, which required the deletion of two semi-detached self-care dwellings villas 9 and 10 in this location (exhibit C);

• The engineering plans, including stormwater and road layouts, grades and details, were updated (exhibit D);

• In response to the evidence of the traffic experts, the proposed road 7 (exhibit D DA_C100) was widened below villa 15 from 4m to 6.5m to permit two way traffic and road 7 was extended with a turning facility into the ‘managed land’ area adjacent to the APZ Area B (exhibit G);

• In response to the agreed evidence of the bushfire experts, the swimming pool and gym and associated facilities that were in the community facility in exhibit C were moved from the former community facility to Building 1 and the former community facility was reduced to a single level building cut into the hill with a green roof housing the OSD tank, plant, water tank and maintenance store (exhibit H);

• In response to the agreed evidence of the bushfire experts, villa 15 had part of its first floor balcony deleted as the balcony encroached into the 30m ‘managed lands’ setback from the riparian vegetation (exhibit J);

• Villa 15 was amended to shift the position of the villa and reduced the depth of the balcony to avoid the angled slice through the balcony shown in exhibit J; privacy screens were added to villas 1 and 38 to prevent overlooking of the northern neighbouring property; and the upper level bedroom balcony was deleted in villas 16 and 17 to prevent overlooking of the northern neighbouring property (exhibit L).

Issues

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

• The proposal is prohibited in the RU6 zone under The Hills Shire Council Local Environmental Plan 2012 (LEP 2012) and the site is not land that adjoins land zoned primarily for urban purposes pursuant to cl 4(1) of SEPP (SH);

• The proposal must be refused because the site is incapable of complying with cl 26(2) of SEPP(SH) requiring access to facilities and services;

• The proposal results in unacceptable impacts on the endangered ecological community and the habitat of threatened species;

• The height of the proposed buildings exceeds the height of buildings development standard of 8m under cl 40 of SEPP(SH) and the proposed height is excessive and inconsistent with the desired future character of the site and locality;

• The proposal is not suitable for the site and is not compatible with the rural residential character of the locality;

• The proposal does not adequately demonstrate that services required to be provided to the future residents of the proposal will in fact be provided;

• A bus capable of carrying 12 passengers to be provided to the residents of the proposal is insufficient to provide for the needs of the likely population of the proposal of 200-280;

• The proposal is not in the public interest as it will establish an undesirable precedent for future development in the locality.

The site and its context

7. The site consists of three parcels of land, legally known as Lot 1 DP 534265 and Lots 1 and 2 DP 560912.

8. The site has an area of 6.4 hectares and frontages of 162m to Wirrabara Road and 105m to Pellitt Lane.

9. The site contains 3 single storey dwellings and associated outbuildings.

10. The site falls from the highest point at the southern corner of the site, at the corner of Wirrabara Road and Pellitt Lane, towards the north. The rear portion of the site contains a section of O’Hara’s Creek. The land surrounding the creek is steeply sloping and densely vegetated.

11. There is a recently constructed single family dwelling and associated outbuildings located on the adjoining property to the north, adjacent to the shared boundary.

The proposal

12. The proposal for a seniors housing development designed by BDA Architecture consists of the following:

• Building 1 community facility;

• Building E aged care facility containing 72 suites;

• 64 apartments consisting of 22 three bedroom apartments, 39 two bedroom apartments, 3 one bedroom apartments and parking:

- Building B 3 storey building containing 24 apartments;

- Building C 3 storey building containing 24 apartments;

- Building D 2-3 storey building containing 16 apartments;

• 38 villas (following the deletion of villas 9 and 10 in exhibit C), each two storeys and either detached or semi-detached;

• Open space and landscaping, internal roads and visitor parking.

Planning framework

13. The application is made pursuant to SEPP(SH). The aims of SEPP(SH) are:

(1) This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

(2) These aims will be achieved by:

(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

14. The land is not zoned primarily for urban purposes pursuant to cl 4(2) of SEPP(SH). The applicant submits that the site is land that adjoins land zoned primarily for urban purposes pursuant to cl 4(4) of SEPP(SH). The proposal complies with cl 17 of SEPP(SH), which requires that a development application made under cl 4(4) must be for a residential care facility or serviced self-care housing and the self-care housing component must be provided in combination with a residential care facility, at cl 17(b) of SEPP(SH).

15. SEPP(SH) prevails to the extent of an inconsistency with other environmental planning instruments, at cl 5(3).

16. The proposal is for a residential care facility consisting of 72 suites and 102 self-contained dwellings. Seniors housing is defined at cl 10 of SEPP(SH) as follows:

In this Policy, seniors housing is residential accommodation that is, or is intended to be, used permanently for seniors or people with a disability consisting of:

(a) a residential care facility, or

(c) a group of self-contained dwellings, or

(d) a combination of these,

but does not include a hospital.

17. A SCC is required for a development application made pursuant to SEPP(SH) on land that adjoins land zoned primarily for urban purposes, at cl 24(1)(a)(i). Without the SCC, there is no power grant development consent for a proposal made pursuant to cl 4(4) of SEPP(SH), at cl 24(2).

18. The provision of a SCC is certification that the Director-General (“DG”) is of the opinion that the site of the proposed development is suitable for more intensive development and the development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment, having regard to (at least) the criteria specified in cl 25(5)(b) of SEPP(SH). Importantly, this is qualified by cl 24(3), which is in the following terms:

(3) Nothing in this clause:

(a) prevents a consent authority from:

(i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or

(ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority’s own assessment of the compatibility of the proposed development with the surrounding environment, or

(b) otherwise 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.

19. The SCC remains current for a period of 24 months, at cl 25(9) of SEPP(SH).

20. A consent authority must not consent to a development application made under SEPP(SH) unless the consent authority is satisfied that residents of the proposal will have access to facilities and services, at cl 26(1) of SEPP(SH). The relevant terms of cl 26 of SEPP(SL) are as follows:

26 Location and access to facilities

(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b) community services and recreation facilities, and

(c) the practice of a general medical practitioner.

(2) Access complies with this clause if:

(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable:

(i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,

(ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time,

(iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or

(b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public transport service available to the residents who will occupy the proposed development:

(i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3)

21. A consent authority must not consent to a development application made under SEPP(SH) unless the consent authority is satisfied that the development complies with the requirements of the document titled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service, at cl 27(1) of SEPP(SH).

22. Part 3, Division 1 of SEPP(SH) includes a requirement for a site analysis.

23. Clause 33 of SEPP(SH) is in the following terms:

33 Neighbourhood amenity and streetscape

The proposed development should:

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

(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and

(ii) using building form and siting that relates to the site’s land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and

(f) retain, wherever reasonable, major existing trees, and

(g) be designed so that no building is constructed in a riparian zone.

24. Part 4 of SEPP(SH) includes development standards to be complied with, including that the height of all buildings in a residential zone where residential flat buildings are not permitted must be 8m or less, at cl 40(4)(a). The 8m maximum height also constitutes a standard that cannot be used to refuse a proposal if the standard is complied with, at cll 48 and 50 of SEPP(SH).

25. The consent authority must be satisfied for a development application made pursuant to cl 4(4) of SEPP(SH) that any facility or service provided will be available to residents when the housing is ready for occupation, pursuant to cl 43 of SEPP(SH).

26. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal at cl 4(1). The objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide (ADG) apply to the proposal at cl 6(1) of SEPP 65.

27. The site is zoned RU6 Transition under the Hills Local Environmental Plan 2012 (LEP 2012) and the proposal is prohibited. The relevant aims of the plan, at cl 1.2, are:

(b) to provide strategic direction and urban and rural land use management for the benefit of the community,

(d) to provide for balanced urban growth through efficient and safe transport infrastructure, a range of housing options, and a built environment that is compatible with the cultural and natural heritage of The Hills,

(e) to preserve and protect the natural environment of The Hills and to identify environmentally significant land for the benefit of future generations,

28. The following map is an extract of the Land Zoning Map LNZ_023 of LEP 2012 with the site highlighted:

29. LEP 2012 is subject to the provisions of any State environmental planning policy that prevails over LEP 2012, at cl 1.9(1).

30. The objectives of the RU6 zone are:

• To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage innovative and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public.

31. The park on the opposite side of Pellitt Lane to the site is zoned RE1 Public Recreation.

32. Before granting consent for earthworks, the consent authority must consider the following matters, at cl 7.2(3) of LEP 2012:

(a) the likely disruption of, or any detrimental effect on, flooding or drainage patterns and soil stability in the locality of the development,

(b) the effect of the proposed development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

33. The rear portion of the site is identified as “Biodiversity” on the Acid Sulfate Soils Map Terrestrial Biodiversity Map Sheet CL1_023 of LEP 2012, and is subject to cl 7.4 of LEP 2012, as follows:

7.4 Biodiversity (Terrestrial)

(1) The objective of this clause is to maintain terrestrial biodiversity, including by:

(a) protecting native fauna and flora, and

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

(c) encouraging the recovery of native fauna and flora and their habitats.

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

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

(a) any potential adverse impacts from the proposed development on the following:

(i) the condition and significance of the vegetation on the land and whether it should be substantially retained,

(ii) the importance of the vegetation in that particular location to native fauna,

(iii) any potential to fragment, disturb or diminish the biodiversity values of the land,

(iv) the condition and role of the vegetation as a habitat corridor, and

(b) any proposed measures to minimise or mitigate those impacts.

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

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

34. The Hills Development Control Plan 2012 (DCP 2012) includes, at Section B1 which applies to land zoned RU6, the aim to ensure that rural development is compatible with the capability of land, has regard to the natural environment, scenic qualities and rural character and contributions to the social and economic wellbeing of the rural area. Section B1 includes the following relevant statement of outcomes and controls for new development:

• 5m side and rear setbacks;

• Fences to be of an open style;

• Cut not to exceed 1m and fill not to exceed 600mm;

• Dwellings, including attached dual occupancies and secondary dwellings should fit within the rural landscape while providing for a residential lifestyle;

• Community facilities, recreation facilities and places of public worship do not impact on the amenity of surrounding development or character of the rural area.

Public submissions

35. Eleven resident objectors gave evidence at the commencement of the hearing on-site. Their concerns can be summarised as:

• The locality already has high levels of traffic and congestion and the proposal will exacerbate this issue;

• The area experiences low water pressure and the proposal may further impact on the water pressure in the area;

• The local shopping centre at Round Corner has insufficient parking for the current demand;

• There are already a number of seniors housing developments in the immediate vicinity of the site and there is insufficient demand for these existing dwellings;

• The site is unsuitable for the development as Wirrabara Road is too busy to walk along and there are no footpaths;

• The proposal is incompatible with the site’s rural character.

36. A representative of the Baptist Centre located on the adjoining property spoke in support of the proposal.

37. The Court in the company of the parties viewed the site from the adjoining property to the north, which contains a recently constructed single family dwelling. The owners of this property are concerned about their privacy and the impact of the proposal on the rural character of their property. They are concerned that the future residents of villas 1, 38, 16 and 17 will overlook their property from elevated terraces and they are concerned about the proximity of villas 1 and 38 to the shared boundary, as the proposed side setback is 2.3m. They are concerned that the proposal will impact on the health of the trees planted along their southern boundary. During the hearing, I gave the applicant notice of my concern regarding the impact of the proposal on the northern neighbour’s amenity.

Expert evidence

38. The applicant relied on the expert evidence of Mr Peter Lee (planning), Mr Lew Short (bushfire), Ms Geraldine (Mia) Dalby-Ball (ecology), Mr Andrew Francis (civil engineering) and Mr Jeff Morris (traffic).

39. The respondent relied on the expert evidence of Mr Stuart McDonald (planning), Mr John Travers (bushfire), Dr AnneMarie Clements (ecology), Dr Pamela Hazelton (soil science) and Mrs Vidya Sivakumar (traffic and engineering).

40. The landscaping experts, Ms Susan Hobley (applicant) and Ms Fiona Ambrosino (respondent), prepared a joint report (exhibit 5) and were not required to give evidence.

Permissibility of the proposal

41. The site is zoned RU6 Transition under LEP 2012 and the proposed use being a seniors living development is prohibited in the Land Use Table under the RU6 zone at (4), as it is not specified in either (2) Permitted without consent or (3) Permitted with consent.

42. The applicant submits that the site is land that adjoins land zoned primarily for urban purposes, at cl 4(4) of SEPP(SH), which is in the following terms:

(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

43. The Council contends that the proposed development is prohibited because the site does not adjoin land zoned primarily for urban purposes.

Whether the issue of the Site Compatibility Certificate (SCC) resolves the question of permissibility under the SEPP (Seniors Housing)

44. In determining the application for a SCC under cl 25(1) of the SEPP(SH), the DG (presumably) had to be satisfied that the proposal was permissible. It is the applicant’s submission that it has not yet been determined by a superior court whether the provision of a SCC by the Department resolves the permissibility issue or whether it can be raised as a matter for determination in the merits appeal notwithstanding that a current SCC has been issued for the site. The applicant does not concede that the permissibility issue can be raised by the Council in the merits appeal following the issue of a SCC by the Department, but does accept that I am bound to determine this issue because Acting Justice Molesworth foreshadowed that it would be determined in the merits appeal (Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6 [7]):

The Applicant submits that the Subject Land adjoins land that is zoned primarily for urban purposes. Presumably that was the view of Deputy Secretary Planning Services when the current SCC was issued to the Applicant on 9 June 2016. The Court has noted that the Respondent Council’s submission to the Department of Planning and Environment dated 30 October 2017, being a letter opposing the issue of a new or renewed SCC (exhibited to the affidavit of Mr Steven Wyn Griffiths dated 29 January 2018), states that the Subject Land is “not within, nor does it adjoin land zoned primarily for urban purposes and therefore, the SEPP does not apply to the site”. That difference of opinion is not for the Court, on this application for expedition, to resolve now, rather it will be a matter for determination at the final hearing. [Italics added]

45. The Council submitted that the permissibility issue can legitimately be contended notwithstanding the provision of a SCC by the Department because it is a fundamental jurisdictional issue and I must firstly be satisfied of jurisdiction.

46. There is no real utility in making a determination between these two positions, as both parties’ submissions require me to determine the permissibility issue.

Whether the site is “land that adjoins land zoned primarily for urban purposes”

47. It was common ground that the phrase “zoned primarily for urban purposes” has the meaning as distinguished by Pearlman CJ in MoDog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443 [12] and followed by Preston CJ in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182 (“Murlan”) [23] and Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council 168 LGERA 239 (“Australian Lifestyle”) [16]; where “zoned” is in this matter the zoning given by LEP 2012; “primarily” means chiefly or principally; and “urban” means pertaining to or constituting a city or town.

48. The applicant submitted that the site sufficiently adjoins land zoned for urban purposes, pursuant to cl 4(4) of SEPP(SH) for two reasons; firstly because the site adjoins a park zoned RE1 under LEP 2012, which properly construed is zoned primarily for urban purposes and the site is separated from the park only by a public road; and secondly, the site is sufficiently proximate to land that is zoned primarily for urban purposes as the site is a distance of 71.7m as surveyed (exhibit 3) from land zoned R2 Low Density Residential under LEP 2012.

49. The Council accepts that the site adjoins the park within the meaning of the cl 4(4) of SEPP(SH) because cl 4(4) expressly provides for the presence of a public road between adjoining land. However, the Council submitted that the park zoned RE1 under LEP 2012 is not land zoned primarily for urban purposes, because there is nothing intrinsically urban about most of the uses identified as permissible in the RE1 zone, instead they are uses that may be and commonly are carried out in both urban and rural contexts.

50. The Council submitted that the site is not sufficiently proximate to the land zoned R2 under LEP 2012 for the following reasons:

• The site does not directly adjoin the R2 zoned land in same way that it adjoins the RE1 zoned land, as there is no boundary that would be common with the R2 land ignoring the public road;

• The site is not diagonally opposite urban zoned land (as was the case in DEM (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187 [15]);

• The site is separated from the R2 zoned land by other RU6 zoned land, on the eastern side of Wirrabara Road and northern side of Pellitt Lane and by RE1 zoned land;

• The distance from the site to the R2 zoned land of 71.7m is, in combination with the above matters although not of itself, sufficient to disqualify the site as adjoining land zoned primarily for

Whether the RE1 zoned land is land zoned primarily for urban purposes

51. The park, on the opposite side of Pellitt Lane to the site, contains a community facility, a library, a mini cricket ground and bushland. The park is positioned on the northern corner of an area of land predominantly zoned R2 Low Density Residential, which surrounds the B2 zoned land that is the retail and commercial precinct known as ‘Round Corner’ at Dural. This can be seen in the extract of the land zoning map at paragraph [28].

52. The first question to be determined is whether the RE1 zone in LEP 2012, properly construed, is land zoned primarily for urban purposes. The legal test is to construe the instrument that zones the land in question (Murlan [40] and [43] and Australian Lifestyle [20]) and to look at the zone’s label, objectives and permissible uses, to ascertain and characterise the purposes for which the land is zoned (MoDog [15]-[16], Murlan [39] and Australian Lifestyle [30]).

53. The RE1 zone in LEP 2012 is labelled Public Recreation and the objectives of the zone are as follows:

• To enable land to be used for public open space or recreational purposes.

• To provide a range of recreational settings and activities and compatible land uses.

• To protect and enhance the natural environment for recreational purposes.

54. The permissible uses in the RE1 zone are as follows:

2 Permitted without consent

Environmental protection works

3 Permitted with consent

Boat launching ramps; Building identification signs; Business identification signs; Car parks; Centre-based child care facilities; Community facilities; Emergency service facilities; Environmental facilities; Information and education facilities; Jetties; Kiosks; Markets; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Respite day care centres; Restaurants or cafes; Roads; Take away food and drink premises; Water recreation structures

55. The applicant submits that the title of the RE1 zone, ‘Public Recreation’ is more consistent with an urban purpose than a rural purpose, as the need for public recreation space is a quintessentially urban, because areas for public recreation are necessary amenities in urban areas consisting of residential housing and shops, rather than in rural areas such as agriculture. According to the applicant’s submission, the aims and objectives of the RE1 zone are consistent with the title. The objective, “To enable land to be used for public open space or recreational purposes” is an essential amenity for urban living. The permissible uses are predominantly urban purposes, such as restaurants or cafes, takeaway food and drink premises, kiosks, markets and recreation facilities, whereas there are no clearly rural purposes permissible in the RE1 zone.

56. I am persuaded by the Council’s submission that the RE1 zoned land is not land zoned primarily for urban purposes. Unlike civic buildings, churches, hospitals and schools; public recreation parks do not necessarily have an urban character (Murlan [48]).

57. The objectives of the RE1 zone emphasise “open space”, “recreation” and “natural environment”. These objectives identify and confine the character of the zone and this defined character is equally applicable to public recreation land within an urban area or within a rural area and do not suggest a primarily urban purpose. For clarity, the “public” nature of Public Recreation is irrelevant to the construction of whether the RE1 zone is land zoned primarily for urban purposes under SEPP(SH) (Murlan [46]).

58. The inclusion of uses in the RE1 zone that are necessarily neither urban nor rural is an indication that the land is not zoned primarily for urban purposes (Australian Lifestyle [29]). The RE1 zone cannot be described as primarily, as in “chiefly” or “principally”, zoned for urban purposes simply because it does not include exclusively rural uses such as ‘agriculture’ or ‘rural industries’; to characterise a zone as urban on this basis would be to find that it is urban by default, which is insufficient to make it zoned primarily for urban purposes. The permissible uses in the RE1 zone do not suggest that the zone has a predominately urban character, which is in my view required to meet the threshold imposed by the inclusion of “primarily” in the phrase, “zoned primarily for urban purposes”.

59. There is nothing intrinsically urban in most of the uses identified as permissible in the RE1 zone, they may be and commonly are carried out in both urban and rural contexts. For example, “markets”, which are a permissible use in the RE1 zone as defined in the dictionary of LEP 2012, are equally likely to be located on urban as well as rural land, contrary to the applicant’s submission that markets are essentially an urban purpose. This interpretation is not, in my view, what Preston CJ was referring to in Australian Lifestyle at [22], as submitted by the applicant. His Honour rejected the Council’s approach, which sought to identify and classify each permissible use as exclusively urban before that use could contribute to identifying the zone as being for urban purposes, on the basis that there would be very few uses which could ever meet this test.

60. A public recreation area by label, objectives and by permissible uses is neither quintessentially urban or rural, it is instead an amenity located within and serving both urban and rural zones, and this is evident on the Council’s land zoning maps, which include RE1 zoned pockets of land surrounded by both urban zoned land: R2 Low Density Residential and R3 Medium Density Residential and R4 High Density Residential (Land Zoning Map LZN_024); and rural zoned land: RU2 Rural Landscape (Land Zoning Map Sheet LZN_021) and RU6 Transition (Land Zoning Maps LZN_022 and 023). It is, however, important to note that it is not the zoning of surrounding land or the community served by the land that gives the zone itself its primary character (Murlan [48]), even though it may give a particular parcel of recreation land its essential character. In the case of RE1 zone land under LEP 2012, the zoning of surrounding land merely demonstrates that the RE1 zone is located within both entirely urban contexts and entirely rural contexts.

61. Clause 2.1 of LEP 2012 divides groups of zones into categories of urban, residential, business, recreation and so on. I do not agree with the Council’s submission that this is necessarily conclusive that the RE1 zone, categorised as “recreation”, is not zoned primarily for urban purposes. The categories are broadly generic and it is conceivable that a zone not included in an urban category could be found to be zoned primarily for urban purposes, as was the case for a special uses zone with only a few permissible uses in Australian Lifestyle [7].

Whether the site is sufficiently proximate so as to adjoin land zoned R2

62. It was common ground between the parties that land zoned R2 Low Density Residential under LEP 2012 is “land zoned primarily for urban purposes” within the meaning of cl 4(4) of SEPP(SH). The question contended was whether the site is sufficiently proximate to the nearest R2 zoned land so as to adjoin this land. The southern corner of the site is 71.7m from the northern corner of the R2 zoned land on the opposite side of Pellitt Lane and to the south-east of the park zoned RE1 (exhibit 3).

63. I prefer the applicant’s submission that the site is sufficiently close to the R2 zoned land so as to adjoin it. The authorities in the context of the predecessors to SEPP(SH) all support the now indisputable position that “adjoins” means “near to” or “in the neighbourhood of” (MoDog [23], Pepperwood Ridge Pty Limited v Newcastle City Council (2005) 142 LGERA 231 (“Pepperwood”) [15]), ACN 115 840 509 Pty Limited v Kiama Municipal Council (2006) 145 LGERA 147 (“Kiama”) [31], Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 (“Malcolm”) [434]).

64. The authorities point to sufficiently proximate so as to adjoin as being a question of fact and degree (Kiama [32]), as follows:

• In MoDog, the land zoned for urban purposes was separated from the site by over 200m, by land zoned for rural use, and this was held not sufficiently proximate so as to adjoin land zoned primarily for urban purposes, at [24];

• In Malcolm, “adjoins” was applied to land zoned for urban purposes separated from the site by a road and roadside reserve 15m wide [434];

• In Pepperwood, the site was separated by 30m from land zoned primarily for urban purposes by intervening crossroads and a four lane highway with median strip, but Malcolm was applied such that the lands were found to be adjoining [16];

• In Kiama, Preston CJ held that the site, separated from land zoned primarily for urban purposes by 65m which included both the Princes Highway and the Illawarra Railway, adjoined that land [40].

65. Pellitt Lane, to the north of Kenthurst Rd, is the effective boundary that arises from the change in the land use categories that separates the urban and rural land uses. This is visually demonstrated on the land use map extract at paragraph [28]. The site is immediately adjoining this urban boundary created by Pellitt Lane. The park is within the urban boundary delineated by Pellitt Lane when considered in the context of surrounding land zonings, despite the zoning of the park being for not land zoned primarily for urban purposes within the meaning of cl 4(4) of the SEPP(SH). The site immediately adjoins this urban precinct but for the park and the presence of the public road. For this reason, I am satisfied that the site is sufficiently proximate to the R2 zoned land at a distance of 71.7m so as to adjoin that land.

65. As the site is land that adjoins land zoned primarily for urban purposes pursuant to cl 4(4) of SEPP(SH), the site is land to which the SEPP(SH) applies and the proposal is permissible with consent under the policy, notwithstanding the prohibition in LEP 2012. I turn now to the merits of the proposal.

Location and access to facilities

67. It was common ground that the site does not meet the access requirements of cl 26(2) of SEPP(SH). The proposal includes the provision of a bus capable of carrying 12 passengers for the residents of the proposal, pursuant to cl 43 of SEPP(SH).

68. It is the Council’s position that the site’s failure to meet the access requirements of cl 26(2) is fatal to the application because the proposal, being on land adjoining urban land, must meet the requirements of both cll 26 and 43 of SEPP(SH), as these provisions work together. The Council submitted that the requirements in Part D of SEPP(SH), including cl 43 requiring transport services to a local centre, constitute additional requirements for sites that adjoin land zoned primarily for urban purposes, over and above the requirements in Part 2 for both sites that are on land zoned primarily for urban purposes and land that adjoins land zoned primarily for urban purposes. In other words, there are additional and more onerous requirements to be met by proposals located on sites that are merely adjoining urban land, beyond the requirements to be met by proposals on urban land. The Council submitted that this submission is contrary to Cowdroy J’s finding in Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 (“Information Gateways”) [34] that the requirement in cl 43 operates to exclude the requirement in cl 26, however Cowdroy J’s finding is not binding (Challenger Listed Investments Limited v Valuer General (No 2) [2015] NSWLEC 60 [31]).

69. The applicant’s position is the same as that expressed by his Honour in Information Gateways and the applicant further submitted that this is the interpretation frequently adopted by consent authorities for seniors living developments on land adjoining urban land.

70. Although I do find the Council’s reasoning compelling, this issue can be left for future judicial consideration as the proposal fails on the merits.

Provision of services

71. The Council submitted that the proposal does not adequately demonstrate that services required to be provided to the future residents of the self-care dwellings will in fact be provided. The application included a short letter from a service provider listing the services to be provided, staffing and addressing miscellaneous matters (exhibit B, tab I). The Council submitted that the letter is insufficient evidence to satisfy cl 42 of SEPP(SH):

42 Serviced self-care housing

(1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:

(a) home delivered meals, and

(b) personal care and home nursing, and

(c) assistance with housework.

(2) For the purposes of subclause (1), residents of a proposed development do not have reasonable access to the services referred to in subclause (1) if those services will be limited to services provided to residents under Government provided or funded community based care programs (such as the Home and Community Care Program administered by the Commonwealth and the State and the Community Aged Care and Extended Aged Care at Home programs administered by the Commonwealth).

72. I accept the Council’s submission that the terms of cl 42 of SEPP(SH) are not satisfied by the letter in evidence because it lacks any details regarding the frequency or availability of those services to the residents of the self-care dwellings (Information Gateways [27]).

Bushfire protection

73. The proposal is a Special Fire Protection Purpose (SFPP) at s 100B(6)(f) of the Rural Fires Act 1997.

74. The bushfire experts agreed that the APZ requires extensive modification of vegetation to minimise fuel loads and must be maintained in accordance with Rural Fire Service’s (RFS) ‘Standards for asset protection zones’ (exhibit 11). The APZs require the effective removal of the understory, limiting canopies to separated clumps of 2-5m with effective canopy cover limited to 15% and removal of the majority of the fuels. It was common ground that the APZs could be adequately managed according to a ‘Fuel and Vegetation Management Plan’ (FVMP). The extent of impacts arising from the creation of APZs was addressed by the evidence of the ecology experts.

75. The bushfire experts agreed, following the relocation of most of the facilities in the community facility to Building 1 (exhibit H) and a minor change to the extent of the balcony of villa 15 (exhibits J and L), that the proposal for bushfire protection shown in exhibit C complies with the performance based controls in Planning for Bushfire Protection published by the NSW Rural Fire Service in 2006. The experts’ agreement was based on agreed minimum distances between buildings and the forested gully of the riparian land in order to achieve a maximum radiant heat level at any point on a building of 10kW/m2 in the event of a bushfire, as follows:

• 44m distance between the forested gully and any building where the width of the unmanaged area is equal to or greater than 50m wide; and

• 30m distance where the width of the forested gully is less than 50m wide.

76. I accept the agreements of the bushfire experts. The APZ identified as Area B is essential to the proposal.

Engineering

77. According to the Council’s engineering expert, Mrs Sivakumar, there were two issues remaining following the amendments made to the proposal and the provision of detailed engineering plans (exhibit D), that could not be dealt with by condition; firstly she was concerned whether road 2 (exhibit D, DA_C100) is sufficiently wide to accommodate a 300mm wide kerb and passing trucks (exhibit 6 Figure 8); and secondly she was concerned whether the south-western section of road 7 was to be widened to 6.5m to satisfy RFS requirements.

78. In relation to the first issue, I accept Mr Morris’ evidence that the 300mm kerb can be accommodated on the southern side of road 2 and that there is sufficient room for two medium rigid vehicles to carefully pass each other, as demonstrated by exhibit 8, Figure 8, which includes a 300mm safety margin for the turning paths of passing medium rigid vehicles.

79. In relation to the second issue, the applicant later amended the proposal to widen road 7 to 6.5m with a turning area in the managed land adjacent to APZ Area B (exhibit G).

80. The experts agreed that kerb modifications around Building E (the aged care facility) shown in exhibit 6 Figure 7 to accommodate the turning path of a heavy rigid vehicle could be imposed by condition.

Impacts on the endangered ecological community and threatened species

81. The ecological experts agreed that the riparian corridor on the site meets the Sydney Turpentine Ironbark Forest (STIF) description in the Final Determinations and is listed as an Endangered Ecological Community (EEC) (Biodiversity Conservation Act 2016 Schedule 2 Part 2). According to Ms Dalby-Ball, approximately 31% of the STIF on the site must be modified to form the required APZs. Most of this area is contained within a triangular portion of the riparian vegetation identified as Area B, which is on the eastern side of the creek in the northern half of the site (exhibit C). Riparian vegetation is retained by the proposal on either side of the creek, including an area 50m wide adjacent to the APZ identified as Area B (exhibit C).

82. The ecological experts agreed that historically there were approximately 2.13 ha of STIF on the site and there is now 1.85 ha, centred along O’Hara’s Creek in the riparian corridor, which extends towards the north. The ecological experts agreed that the direct impacts of the proposal are the clearing and modification of STIF to form the APZs and the indirect impacts include water runoff from the impervious surfaces and from water and sediment runoff from the fuel reduced areas of the APZs.

83. The ecological experts and soil expert agreed that the area to the east of the APZ Area B has been filled sometime after 2012. According to Dr Hazelton, the fill is comprised of silty clay soil and the native soil on the site that supports the STIF, ‘Lucas Heights Soil Landscape’, is prone to erosion.

84. According to Ms Dalby-Ball, the APZ areas are within areas of the STIF that are already compromised and are not fully structured or functioning STIF, due to extensive weed domination of the ground and midstory. In her opinion, the weed incursion will continue to threaten the STIF community without weed management and weed invasion is listed as a key threatening process for this community. It was her view that the creation of the APZ will improve the bio-diversity of the STIF, notwithstanding that the APZ areas will not be fully functional STIF as they will be missing the midstory. Ms Dalby-Ball was confident that a FVMP can adequately manage and maintain the APZ areas and a condition should be imposed on the consent requiring the provision of a FVMP. Despite Ms Dalby-Ball’s evidence relying on a FVMP for the proposal, there is no FVMP as part of the application. I am not satisfied that a condition imposed on the consent requiring a FVMP is adequate, as the FVMP is intended to provide the commitments that control, limit and mitigate the impacts of the APZs on the STIF and so the FVMP must form part of a proposal if those commitments are to be taken into account in the assessment of the proposal.

85. In Dr Clements’ opinion, an acceptable loss from the direct and indirect impact of the proposal would be a maximum loss of 10% of the habitat of STIF coupled with an offset to achieve a conservation gain preferably on the site. The ecology experts agreed that the modification or loss of the existing STIF would result in approximately 486 to 720 trees being lost or pruned to achieve canopy separation with 15% canopy cover to create the APZs. According to Dr Clements, this would result in a significant impact on the ecological community of STIF.

86. As a mitigation measure, the proposal includes an offset area of 2700m2 in the western corner of the site, which is to be recreated as a fully structured STIF community. According to Ms Dalby-Ball, a regenerated area of STIF would not necessarily match the original. According to Dr Hazelton, the nominated offset area has very shallow soil and may not be a feasible location to regenerate STIF and in Dr Clements’ view, the offset area has no buffer to protect the new STIF. In response to this evidence, Ms Dalby-Ball opined that an offset area could be provided elsewhere on the site or off the site.

87. Ms Dalby-Ball said in oral evidence that she had not accounted for the impact from the stormwater outlet shown on the engineering plans (exhibit D) as OSD 4, which drains directly onto land to south of former community facility. In her view, the 1/100 event is of no concern because the water is moving at velocity, however, the 1/5 event would need to be carefully managed to avoid detrimental impacts on the STIF. According to Ms Dalby-Ball, the stormwater through the bio-basin typically results in a long slow release, which can carry sediment and weeds into the STIF and need structures to control velocity of water, but it is something that can be managed.

88. In Dr Clements’ opinion, the proposal should aim for pre-development water flows by recycling water and although the stormwater can be spread to minimise erosion, the water from road runoff changes the profile from acidic to alkaline, increasing the solubility of phosphate which encourages weeds as they thrive on phosphate.

89. On the basis of all of the evidence before me, I cannot be satisfied of the following regarding the impact of the proposal on the EEC of STIF and the habitat of threatened species:

• Whether the proposed offset area of STIF of 2,700m2 is viable given the agreed evidence regarding the extremely shallow soil in the area proposed;

• Whether 2,700m2 is a sufficient area to adequately mitigate the substantial modification of 5,735m2 or 31% of STIF on the site to form APZs;

• Whether the possible impact of contaminants in the fill on the site has been fully assessed;

• Whether the changes to road 7 in exhibit G have been fully assessed in terms of the impact of the design of the road on the stormwater management and the consequential impacts on the STIF in Area B;

• Whether the effects of the stormwater design have been adequately assessed and addressed in terms of the impact that increased volumes and rates of water, including road runoff, draining into the riparian corridor will have on the STIF.

90. I am not satisfied that the applicant has adequately demonstrated that the substantial modification of at least 31% of the EEC of the STIF on the site to form the APZs will not have a significant impact on the STIF and on the habitat of threatened species and that suitable mitigation measures have been designed and assessed. I am not satisfied that the impacts on the EEC arising from the stormwater design have been fully assessed and adequately mitigated.

Planning issues

Exceedance of the 8m height development standard in SEPP(SH)

91. The applicant tendered a clause 4.6 written request to vary the development standard for 8m maximum height in cl 40(4)(a) of SEPP(SH) and a State Environmental Planning Policy No 1—Development Standards (SEPP 1) written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances (exhibit M). I accept the Council’s submission that a cl 4.6 written request to vary the development standard is the appropriate mechanism with which to make the request, because SEPP 1 does not apply to land to which LEP 2012 applies at cl 1.9(2) of LEP 2012 and cl 4.6(2) of LEP 2012 permits development consent to be granted for development even though the development would contravene a development standard imposed by another environmental planning instrument. However, for abundant caution, the applicant provided both.

92. In order for there to be power to grant development consent for a development that contravenes the development standard in cl 40(4)(a) of SEPP(SH), I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012); that the applicant's written request has adequately addressed that compliance with the development standards is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

93. The Council submitted that the concurrence of the Department may not be assumed for development that contravenes a numerical development standard by more than 10% (Planning circular PS 18-003 ‘Variations to development standards’).

94. The exceedance of the 8m height development standard is shown in exhibit B, dwg 4.14.1. The plan in dwg 4.14.1 excludes air conditioning enclosures and lift overruns. This note excludes other exceedances from being shown on the plan, for example, part of the air conditioning enclosure on Building C at RL193.2 exceeds the 8m height limit as existing ground level at the northern end of the enclosure is below the RL185 contour. The maximum height above ground level of the proposal is 11.3m, on the southern side of Building E, the aged care facility (exhibit B, dwg 4.14.2).

95. The applicant’s written request (exhibit M) justifies the non-compliance of the proposal with the height development standard of 8m on the following bases:

• The exceedances are minor;

• The sloping nature of the site presents a constraint and contributes to the exceedances of the height development standard;

• The proposal is consistent with the objectives of the height of buildings development standard in LEP 2012;

• The proposal is compatible with adjoining development and does not impose any undesirable impacts;

• The proposal does not result in any adverse visual impacts.

96. There are no objectives for the development standards in Part 4 Division 1 of SEPP(SH).

97. I am not persuaded that the exceedance of the 8m height development standard is justified by the written request or objection to vary the 8m height development standard. I accept Mr McDonald’s evidence regarding the exceedance of the 8m height development standard.

98. The gridded layout of the proposal is imposed on this sloping site and as a consequence of the layout, the site requires substantial excavation and fill. The bulk earthworks of the proposal are of a significant magnitude (exhibit B, civil engineering DA_BE00 Rev 05). The exceedances of the height development standard are fundamentally a result of this issue.

99. The ground floors of villas 16 and 17 are a maximum of 2.9m above existing ground level and positioned on fill (as shown on the existing survey overlay plan SK.102 at 1:500 exhibit B) which causes these two storey semi-detached villas to exceed the 8m height development standard. The bulk and scale of these villas, as a direct consequence of the raised ground level, has a detrimental impact on the amenity of the northern neighbour.

100. The aged care facility in Building E, in a H configuration, is positioned across the existing hill with an approximate fall of 7m across its site from the eastern corner of RL185 to the western corner of RL178; yet the layout and design of Building E has uniform levels which do not respond to the topography of the site, other than to locate plant and a refuge area on the side of the floor cut into the ground. It is this lack of response to the topography of the site that has contributed to the exceedance of the 8m height development standard by the portion of the uppermost floor above the lowest level of existing ground level.

101. I have considered the applicant’s written request for the exceedance of the 8m height development standard in SEPP(SH) and I am not satisfied that the written request justifies that compliance with the height development standard is unnecessary or unreasonable in the circumstances of the appeal.

Solar access

102. I accept the applicant’s submission that the proposal could be amended so that each individual residential apartment building on the site complies with the design criteria for objective 4A-1 of the Apartment Design Guide (ADG) for at least 70% of living rooms and private open space areas of apartments receive a minimum of 3 hours direct sunlight between 9am and 3pm mid-winter.

Amenity of villas 18-27

103. The planning experts disagreed on the significance of the impact of the overshadowing caused by Buildings C and D across the nearby villas to the south-east, villas 18-27. I accept Mr McDonald’s evidence that the 7m separation between the residential apartment buildings and the villas is insufficient and will result in significant amenity impacts on the future residents of villas 18-27. I do not accept Mr Lee’s evidence that a few sliding screens on the upper levels of the rear of the villas will ameliorate overlooking between the rear elevations of the villas and the apartment buildings.

104. Villas 18-27, townhouse type C (exhibit B, dwg 7.7), have a small outdoor courtyard of approximately 2m x 4m on the north-western side of each villa and contained within the villa’s building envelope (there are no dimensions shown and the drawing is not to scale). Other villas in the proposal have a reasonably sized outdoor terrace beyond the rear façade of the villa in addition to a small courtyard, for example, villas 28-37, townhouse type B, have a 5m deep terrace at the rear. The outdoor area provided for villas 18-27 is very small for a three bedroom villa.

103. Villa 19 is shown in section A (exhibit B, dwg 4.24) and is at the approximate level of the existing ground level RL184.46 (shown in the section with the existing ground level approximately 1m higher). The row of villas including villa 19 have a retaining wall immediately beyond the rear façade of the villa, with a significant drop in level of 2.5m to the road below at RL 181.9 (exhibit B, dwg 7.28). The retaining wall and drop in level to the road below further erodes the amenity of the small rear courtyard of villas 18-27, as there is no opportunity for screen planting immediately behind these villas.

104. There is only 7m between the balconies of Buildings C and D and the rear façades of villas 20-23 and Building C is nearly 7m higher than the ground level of villa 19. This small separation between the residential apartment buildings and the villas will result in significant overshadowing of the villas and their small courtyard during winter (exhibit B, dwgs 8.6 and 8.7) and overlooking between the apartments and the villas.

Side setback to the northern boundary

107. Villas 1 and 38 are setback 2.3m from the northern boundary. The ground level of villa 38 is raised above existing ground level over 1.5m on the northern side. The roof level is 6.15m above the ground floor level. The bulk of these villas, positioned close to the shared boundary, is not compatible in scale or in character with the adjoining rural style property. The proximity of these villas to the shared boundary will have a significant detrimental impact on the amenity of the neighbouring property and this impact cannot be ameliorated by adding louvres to the upper level.

Neighbourhood amenity and character

108. The proposal does not achieve the neighbourhood amenity and streetscape design principles for seniors housing at cl 33 of SEPP(SH). The proposal does not maintain reasonable neighbourhood amenity and appropriate residential character by providing building setbacks to reduce bulk and overshadowing; the proposal does not use building forms and siting that relates to the site’s land form; and the proposal does not adopt building heights at the street frontages that are compatible in scale with adjoining development.

109. I accept Mr McDonald’s evidence that the proposal fails to adequately respond to the rural character of the locality, due to the density of the development including the inadequate side setbacks from the northern boundary, the inadequate setback between the residential apartment buildings and the nearby villas, the height of elements of the proposal and the substantial cut and fill across the site.

110. The visitor car park in the eastern corner of the site, immediately adjacent to the shared northern boundary with the adjoining neighbour and the Wirrabara Road street frontage is raised over 3m above existing ground level, with RL 183.6 along the northern side over the existing ground level contour of RL180. The raised level of the carpark above existing ground level in the corner of the site and clearly visible from the public domain results in a proposal that is not compatible in scale with the existing character of Wirrabara Road.

Conclusion

111. The site is sufficiently proximate to the nearby land zoned for urban purposes so as to adjoin that land, pursuant to cl 4(4) of SEPP(SH). As a result, the site is land to which the SEPP(SH) applies and the proposal is permissible with consent under the policy, notwithstanding the prohibition in LEP 2012.

112. The applicant was afforded numerous opportunities to amend the proposal during the hearing, however, the proposal still has fundamental deficiencies in its planning and design which are not able to be cured by further amendments or by condition. Many aspects of the proposal are unresponsive to the constraints and opportunities of this site.

113. I am not satisfied that the applicant has adequately demonstrated that the bushfire protection measures will not detrimentally impact the EEC and the habitat of threatened species on the site, nor that the impacts on the EEC arising from the stormwater design have been fully assessed and adequately mitigated.

114. I have considered the applicant’s written request for the exceedance of the 8m height development standard in SEPP(SH) and I am not satisfied that the written request justifies that compliance with the height development standard is unnecessary or unreasonable in the circumstances of the appeal.

115. The proposal does not contribute to and is not compatible with the rural character of the locality.

116. The proposal will have a detrimental impact on the amenity of the adjoining property.

Orders

117. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. No. 944/2018/JP for a seniors housing development at 3-5 Pellitt Lane and 9 Wirrabara Road, Dural, is refused.

3. The exhibits, other than exhibit 1, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Amendments

19 April 2018 - Correction to typographical error in paragraph [65].

19 April 2018 - Correction to typographical error in paragraph [51].

Decision last updated: 19 April 2018