Zhiva Living Dural Pty Ltd v Hornsby Shire Council

[2019] NSWLEC 1222

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222
Hearing dates:	6 – 10 May 2019
Date of orders:	22 May 2019
Decision date:	22 May 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The orders of the Court are: (1) the Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans; (2) the appeal is dismissed; (3) the exhibits are returned, except Exhibits A, B and 1.
Catchwords:	DEVELOPMENT APPLICATION – Seniors living development – whether the proposed development satisfies the provisions of cl 55 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – whether a jurisdictional precondition can be cured by the grant of consent with conditions.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hornsby Local Environment Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Texts Cited:	Hornsby Development Control Plan 2013
Category:	Principal judgment
Parties:	Zhiva Living Dural Pty Ltd (Applicant) Hornsby Shire Council (Respondent)
Representation:	Counsel: S Duggan SC (Applicant) M Wright SC (Respondent)   Solicitors: Mills Oakley (Applicant) Pikes and Verekers (Respondent)
File Number(s):	2018/292092
Publication restriction:	No

Judgment

1. COMMISSIONER: Zhiva Living Dural Pty Ltd (the Applicant) has appealed the deemed refusal by Hornsby Shire Council (the Respondent) of its development application DA/668/2018 for the demolition of existing structures, earthworks, tree and vegetation removal, and the construction of a seniors housing development (the proposed development) across two lots at 3 Quarry Road (Lot 2A in DP 158064) and 4 Vineys Road (Lot 1 in DP 230172), Dural (the Subject Site).

2. The Applicant’s development application was subsequently determined by refusal by the Sydney North Planning Panel on 5 December 2018.

3. The proposed development includes the following elements:

1. construction of:

1. seven, two-storey buildings, referred to as Buildings A to G, with attics, containing 91 self-care housing units;

2. a central facilities building, fronting Quarry Rd and connecting so-called Buildings A and D, containing a reception, restaurant, resident lounge, cinema, offices, café, gym, swimming pool, and spa.

3. a two-storey residential aged care facility (RACF), with attic, fronting Vineys Road;

2. construction of car parking spaces across the proposed development, consisting of:

1. 48 car parking spaces for the residential care facility’s staff and visitors; and

2. 195 residential and visitor car parking spaces associated with the self-contained dwellings, with all car parking spaces located in basement levels;

3. vehicular access to the development from both Quarry Road and Vineys Road;

4. an internal road connecting Quarry Road and Vineys Road located along the north western side of the Subject Site;

5. an internal road along the south eastern boundary that would terminate at a cul-de-sac;

6. a total of 25 staff to be present on the site at any one time, in association with the residential aged care facility building;

4. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction under the Land and Environment Court Act 1979.

Background

5. The Subject Site is located at just off Old Northern Road, Dural, and is bounded by:

1. Quarry Rd to its south west;

2. Vineys Road to its north east;

3. Dural Flower Farm, a residential property operating as a business, at 1 Quarry Road, and a further residential dwelling at 833 Old Northern Road, to its north west; and

4. A nursery called Green Gallery, and residential properties at 6 and 8 Vineys Road, to its south east;

6. The Q North Business Park is situated to the west of the Subject Site and, notwithstanding its position on the opposite side of Quarry Road, is located on land that adjoins the Subject Site and which land is zoned B2 Local Centre, and as a consequence is land zoned primarily for urban purposes.

7. The Subject Site itself is zoned RU2 Rural Landscape under Hornsby Local Environment Plan 2013 (HLEP). Seniors housing, including a seniors living development such as is proposed by the Applicant, is not a land use identified under HLEP as permissible, with or without consent, within the RU2 zone, and consequently it is a prohibited form of development within the RU2 zone (see below at [21])

8. The Applicant relies upon a Certificate of Site Compatibility, referred to in the hearing as a Site Compatibility Certificate (and hereafter referred to as the “SCC”), issued by the Deputy Secretary (Planning Services) as the delegate of the Secretary of the Department of Planning and Environment under the provisions of cl 25(4)(a) of the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (SEPP ARH) to enable use of the Subject Site for the purpose of seniors housing, which would otherwise be a prohibited use on the RU2 land use zone.

9. The SCC certifies that, in the opinion of the Delegate:

1. the site described in Schedule 1 of the SCC is suitable for more intensive development; and

2. the development described in Schedule 1 is compatible with the surrounding environment and land uses, having regard to the criteria specified in cl 35(5)(b) of SEPP ARH.

10. Schedule 1 of the SCC provides the following information:

1. Site Description: 3 Quarry Road (Lot 2A DP 158064) and 4 Vineys Road (Lot 1 DP 230172), Dural;

2. Project Description: Development of a residential aged care facility containing 74 beds and 219 self-care units contained within 8 three-storey buildings, with basement car parking and an ancillary building.

11. The SCC also includes a section entitled Schedule 2, which is not specifically referenced within the Delegate’s certification, and which provides the following information.

1. Application made by: RPS Australia Pty Ltd on behalf of Marchese Partners International Pty (sic);

2. Requirements imposed on determination:

1. The final layout, number of in-fill self-care living units and onsite facilities in the proposed seniors living housing development will be subject to the resolution of issues relating to:

1. overland flood management;

2. setbacks, landscaping and land use conflict;

3. utility servicing to confirm reticulated water and adequate facilities for the removal or disposal of sewage; and

4. traffic and access.

12. Prior to the hearing commencing at Court, an on-site view was undertaken, during which the following individuals made submissions to the Court in relation to the appeal:

1. Mr Peter Thornburn, a resident of Quarry Road, who spoke on behalf of agricultural and horticultural business in the local area;

2. Mr Mario Campo, a resident of Quarry Road, who, in addition to raising his own concerns, said that he endorsed the submissions of Mr Thornburn;

3. Ms Jan Primrose, a resident of Hornsby, representing the organisation ‘Protecting Your Environment Inc’, who provided a lengthy oral submission concerning ecology and watercourse matters on-site;

4. Ms Patricia Brown, a resident of Beecroft, representing the organisation ‘Byles Creek Valley Union Inc’, who also provided a lengthy oral submission concerning bushfire risk issues;

5. Ms Prue Mettam, a resident of Quarry Road, who spoke about her concerns relating to traffic impacts and water consumption impacts;

6. Mr Colin Norris, a resident of Quarry Road, who spoke about his concerns relating to traffic impacts, particularly in relation to emergency services;

7. Ms Doedie Fatt, a resident of Quarry Road, who said she opposed the development in its entirety, including for reasons of traffic, access, sewage and scale;

8. Mr Ben Seale, a resident of an adjoining property on Vineys Road, who spoke principally in relation to traffic and access to the proposed development, notably via Vineys Road;

9. Mr Matthew Murphy, a resident of Vineys Road, who mentioned his concerns in relation to character and traffic;

10. Mr Scott Ashwood, a resident of an adjoining property on Vineys Road, who raised concerns in relation to construction impacts, including noise, stormwater related impacts, potential impacts on trees;

13. In summary, the principal issues of concern raised by the objectors were as follows:

1. whether, contrary to the SCC upon which the Applicant relies in these proceedings, the proposed development was compatible with the character of the local area, which many of the objectors characterised as being predominantly of a rural nature;

2. whether the proposed development was consistent with the objectives of the RU2 zoning of the Subject Site and the zoning of land surrounding the Subject Site which was also zoned RU2;

3. whether the potential impacts of the proposed development were acceptable given the character of the area, the businesses operating on land adjoining the site, and the residential dwelling in proximity to the site;

4. whether the design of the proposed development would provide adequate amenity to future residents of the facility in light of the Subject Site’s location within an area that was zoned RU2 Rural Landscape;

5. whether the proposed development would adversely impact businesses in the local area, many of which were said to be horticultural businesses;

6. whether the potential traffic impacts and proposed vehicular access arrangements to and from the Subject Site, via both Quarry Road and Vineys Road, were acceptable;

7. whether the potential flora and fauna impacts of the proposed development, including the proposed removal of trees, were acceptable;

8. whether the potential impacts of the proposed development on the flow of water, including stormwater flows, across the Subject Site were acceptable;

9. whether the potential impacts of the proposed development in relation to bushfire were acceptable;

14. The Parties agreed that the matters raised by the objectors would be the subject of evidence and/or testimony from experts during the hearing.

Statutory Considerations

Environmental Planning and Assessment Act 1979

15. The objects of the of the Environmental Planning and Assessment Act 1979 (EP&A Act) are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

16. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) 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 (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

17. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

.

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

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

19. SEPP Seniors says that it will achieve these aims 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.

20. The following provisions of SEPP Seniors are of particular relevance in this appeal:

1. Clause 4, concerning land to which the policy applies, and which, inter alia, relevantly provides:

(1) General

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,

(ii) residential flat buildings,

(iii) hospitals,

(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or

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

…

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.

...

2. Chapter 2, which describes key concepts addressed by SEPP Seniors, including the concepts of Seniors, People with Disability, Seniors Housing, Residential Care facilities, Hostels and Self-Contained Dwellings.

3. Chapter 3, concerning the development for seniors housing, and which includes the following provisions:

1. Clause 16 in relation to when development consent is required under SEPP Seniors and which says:

Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.

2. Clause 17 in relation to development on land adjoining land zoned primarily for urban purposes, and which provides:

(1) Subject to subclause (2), a consent authority must not consent to a development application made pursuant to this Chapter to carry out development on land that adjoins land zoned primarily for urban purposes unless the proposed development is for the purpose of any of the following:

(a) a hostel,

(b) a residential care facility,

(c) serviced self-care housing.

(2) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purposes of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that the housing will be provided:

(a) for people with a disability, or

(b) in combination with a residential care facility, or

(c) as a retirement village (within the meaning of the Retirement Villages Act 1999).

Note. Clause 13 (3) defines serviced self-care housing as seniors housing that consists of self-contained dwellings where meals, cleaning services, personal care and nursing care are available on site. Clause 42 requires the consent authority to be satisfied that residents of such housing have reasonable access to services. Clause 42 also provides that if services are limited to those provided under Government provided or funded community based care packages, this does not constitute reasonable access to services.

3. Clause 24, in relation to site compatibility certificates being required for certain development applications, and which, inter alia, relevantly provides as follows:

(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) if:

(a) the development is proposed to be carried out on any of the following land to which this Policy applies:

(i) land that adjoins land zoned primarily for urban purposes, ...

...

...

(2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the relevant panel has certified in a current site compatibility certificate that, in the relevant panel’s opinion:

(a) the site of the proposed development is suitable for more intensive development, and

(b) 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 clause 25 (5) (b).

Note. Clause 50(2A) of the Environmental Planning and Assessment Regulation 2000 requires a development application to which this clause applies to be accompanied by a site compatibility certificate.

(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.

Note. Nothing in this clause affects a consent authority’s duty to give effect to non-discretionary standards set out in this Policy. See, for example, clauses 48, 49 and 50.

...

4. Clause 25, concerning the making of an application for a site compatibility certificate, and which, inter alia, relevantly provides as follows:

25 Application for site compatibility certificate

...

(3) The Planning Secretary must:

(a) forward the application to the relevant panel within 35 days after it is lodged if it is reasonably practicable to do so, and

(b) provide a copy of the application to the General Manager of the council for the area in which the development concerned is proposed to be carried out (the relevant General Manager) within the period of 7 days after the application is lodged.

(4) Subject to subclause (5), the relevant panel may determine the application by issuing a certificate or refusing to do so.

(5) The relevant panel must not issue a site compatibility certificate unless the relevant panel:

(a) has taken into account the written comments (if any) concerning the consistency of the proposed development with the criteria referred to in paragraph (b) that are received from the relevant General Manager within 21 days after the application for the certificate was made, and

(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,

(ii) the impact that the proposed development is likely to have on the uses that, in the opinion of the relevant panel, are likely to be the future uses of that land,

(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,

(iv) in the case of applications in relation to land that is zoned open space or special uses—the impact that the proposed development is likely to have on the provision of land for open space and special uses in the vicinity of the development,

(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,

(vi) if the development may involve the clearing of native vegetation that is subject to the requirements of section 12 of the Native Vegetation Act 2003—the impact that the proposed development is likely to have on the conservation and management of native vegetation,

(vii) the impacts identified in any cumulative impact study provided in connection with the application for the certificate, ….

5. Clause 33, concerning neighbourhood amenity and streetscape, and which requires that:

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.

6. Clause 34, concerning visual and acoustic privacy, and which requires that:

The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and

(b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.

7. Clauses 42, 43 and 44, concerning development on land adjoining land zoned primarily for urban purposes, and which provide as follows:

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).

43 Transport services to local centres

(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 that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development:

(a) that will drop off and pick up passengers at a local centre that provides residents with access to the following:

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

(ii) community services and recreation facilities,

(iii) the practice of a general medical practitioner, and

(b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day.

(2) Subclause (1) does not apply to a development application to carry out development for the purposes of the accommodation of people with dementia.

(3) In this clause, bank service provider has the same meaning as in clause 26.

44 Availability of facilities and services

A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage.

8. Clauses 48 and 50, concerning standards that cannot be used to refuse development for residential care facilities and self-contained dwellings, and which provide:

48   Standards that cannot be used to refuse development consent for residential care facilities

A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds:

(a)  building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys), or

(b)  density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less,

(c)  landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided,

(d)  parking for residents and visitors: if at least the following is provided:

(i)  1 parking space for each 10 beds in the residential care facility (or 1 parking space for each 15 beds if the facility provides care only for persons with dementia), and

(ii)  1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time, and

(iii)  1 parking space suitable for an ambulance.

Note. The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent.

50   Standards that cannot be used to refuse development consent for self-contained dwellings

A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds:

(a)  building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys),

(b)  density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less,

(c)  landscaped area: if:

(i)  in the case of a development application made by a social housing provider—a minimum 35 square metres of landscaped area per dwelling is provided, or

(ii)  in any other case—a minimum of 30% of the area of the site is to be landscaped,

(d)  Deep soil zones: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15% of the area of the site (the deep soil zone). Two-thirds of the deep soil zone should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3 metres,

(e)  solar access: if living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

(f)  private open space for in-fill self-care housing: if:

(i)  in the case of a single storey dwelling or a dwelling that is located, wholly or in part, on the ground floor of a multi-storey building, not less than 15 square metres of private open space per dwelling is provided and, of this open space, one area is not less than 3 metres wide and 3 metres long and is accessible from a living area located on the ground floor, and

(ii)  in the case of any other dwelling, there is a balcony with an area of not less than 10 square metres (or 6 square metres for a 1 bedroom dwelling), that is not less than 2 metres in either length or depth and that is accessible from a living area,

Note. The open space needs to be accessible only by a continuous accessible path of travel (within the meaning of AS 1428.1) if the dwelling itself is an accessible one. See Division 4 of Part 4.

(g)  (Repealed)

(h)  parking: if at least the following is provided:

(i)  0.5 car spaces for each bedroom where the development application is made by a person other than a social housing provider, or

(ii)  1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, a social housing provider.

Note. The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent.

9. Clauses 54 and 54A, concerning savings provisions, and which provide as follows:

54   Savings and transitional provisions—site compatibility amendments

Clause 24, as amended by State Environmental Planning Policy (Repeal of Site Compatibility Provisions) 2011, applies to a development application for development to which that clause applies that was made, but not determined, before the commencement of the amendments.

54A   Savings and transitional provisions - State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment 2018

(1) Subject to subclause (2), clause 25, as amended by the State Environmental Planning Policy (Housing for Seniors or People with a Disability) Amendment 2018, extends to an application for a site compatibility certificate made, but not determined, before 1 October 2018 if the application was made on or after 10 November 2017.

(2)  The relevant panel, and not the Planning Secretary, is to determine applications for site compatibility certificates made, but not determined, before 1 October 2018.

(3)  A reference in clause 24 (as amended by the Policy referred to in subclause (1)) to the relevant panel extends to the Planning Secretary in respect of a current site compatibility certificate issued before 1 October 2018.

10. Clause 55, concerning the need for a fire sprinkler system in residential aged care facilities, and which provides as follows:

55   Residential care facilities for seniors required to have fire sprinkler systems

A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.

Hornsby Local Environment Plan 2013

21. Development on the Subject Site is subject to the provisions of Hornsby Local Environmental Plan 2013 (HLEP), and under the provisions of cl 2.1 of HLEP it is zoned RU2 Rural Landscape, the objectives of which are to:

• ... encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• ... maintain the rural landscape character of the land.

• ... provide for a range of compatible land uses, including extensive agriculture.

• ... encourage land uses that support primary industry, including low-scale and low-intensity tourist and visitor accommodation and the provision of farm produce direct to the public.

• ... ensure that development does not unreasonably increase the demand for public infrastructure, services or facilities.

22. Within this RU2 zone, development for the purposes of seniors housing, such as is proposed by the Applicant, is a prohibited development.

Contentions

23. At the commencement of the hearing, and notwithstanding the range of issues raised by objectors, as noted above at [13], the Parties agreed that the contentions between them in this appeal fell into two broad areas:

24. The first area of contention concerned the SCC issued by the Delegate of the Secretary of the Department of Planning and Environment under the provisions of cll 24 and 25 of SEPP Seniors, and, more specifically:

1. whether the Applicant, and the Court in this Appeal, can rely upon the SCC, issued by the Delegate of the Secretary of the Department of Planning and Environment under the provisions of cl 24 of SEPP Seniors, for the purposes of obtaining a consent to its development application in two respects:

1. whether the ‘requirements imposed on determination’ identified within Schedule 2 of the SCC, have weight for the purposes of the certification under the SCC;

2. whether the Applicant’s proposed development is consistent with project description in Schedule 1 of the SCC such that the SCC can be relied upon by the Applicant for the purposes of its proposed development.

2. whether the Applicant’s development is of a form that it can be determined consistent with the provisions of cl 17 of SEPP Seniors for a development that is proposed to be carried out on land that adjoins land zoned primarily for urban purposes.

25. The second area of contentions related to the design of the proposed development, and whether it satisfies the provisions of SEPP Seniors beyond those in cl 17 and cll 24 and 25, as well as the relevant provisions of HLEP and the Hornsby Development Control Plan 2013 (HDCP), in particular in relation to:

1. character and context, as concerns:

1. neighbourhood amenity and streetscape, in relation to SEPP Seniors cl 33;

2. visual and acoustic privacy, in relation to SEPP Seniors cl 34;

3. location access and facilities, in relation to SEPP Seniors cl 26;

4. the objectives for the RU2 zoned land in relation to HLEP cl 2.1.

2. the management of stormwater in relation to Seniors SEPP cl 36, and HDCP Part 1C.1.2.b;

3. the management of waste, in relation to HDCP Part 1C.2.3;

4. the remediation of land, in relation to the provisions of SEPP 55;

5. traffic impacts and access arrangements;

6. potential impacts on ecology, including:

1. proposed tree removals;

2. the proposed management of trees and vegetation;

3. the proposed management of riparian lands.

26. As noted previously (see above at [8]), the Applicant’s development application relies on the provisions of SEPP Seniors for its permissibility on the Subject Site which is zoned RU2 Rural Landscape under HLEP.

27. The provisions of SEPP Seniors include a number of jurisdictional preconditions that must be satisfied in order to enliven the Court’s power to grant consent.

28. Consequently, before considering the merits contentions in this appeal, I must consider whether the Applicant’s development application satisfies the preconditions with SEPP Seniors such that the Court’s powers to grant consent have been enlivened.

Does the Applicant’s development application satisfy the preconditions of SEPP Seniors?

29. During the proceedings, the Court received submissions, and benefitted from expert evidence, in relation to the Applicant’s proposed development, including in relation to its satisfaction of the various preconditions contained in the provisions of SEPP Seniors.

30. However, the Court was not taken to evidence in relation to the basis for the Applicant’s development application satisfaction of cl 55 of SEPP Seniors (see above at [20(3)(j)]).

31. Consequently, during the hearing the Court sought advice from the Applicant in relation to the provisions of cl 55 of SEPP Seniors and, more specifically, the Court invited the Applicant to confirm that its development application provided for the inclusion of a fire sprinkler system within its proposed residential care facility.

32. In response, the Applicant proposed that, should the Court be minded to grant consent to its development application, the provisions of cl 55 of SEPP Seniors could be addressed through the inclusion of a condition of consent (proposed condition 29A) that would require the provision of a fire sprinkler system within the proposed residential care facility in fulfilment of the requirements of cl 55 of SEPP Seniors.

33. A proposed condition, drafted by the Applicant for this purpose, was tendered as evidence at the hearing as part of the Applicant’s proposed conditions of consent.

34. Following the conclusion of the hearing, the Court sought further submissions from the Applicant, and the Respondent, in relation to this matter.

35. In response to this invitation, the Applicant:

1. confirmed its previous submission that the imposition of a condition of consent, and specifically its proposed condition 29A, was sufficient to satisfy the provisions of cl 55 of SEPP Seniors;

1. further submitted that, should the Court retain any concerns about the implementation and maintenance of the fire sprinklers within the RACF, two additional measures could be implemented:

1. a condition could be imposed on the following terms which would require the registration of a positive covenant on the title of the land to ensure ongoing maintenance of the fire sprinkler system and to provide additional notice of its requirement on property title documents; or alternatively,

2. in addition to the conditions mentioned above at [(1)] and [(a)], the Court could insert, as part of proposed condition 4, concerning amendments of plans, a further draft condition 4(a)(vi), requiring that the approved plans should be amended so as to include the fire sprinkler system notations within them for approval with the construction certificate.

36. The Respondent in its submissions agreed with the Applicant that the inclusion of proposed condition 29A would be sufficient to ensure that the proposed development complied with the provisions of cl 55 of SEPP Seniors.

37. Based on these submissions, I conclude that the Applicant’s development application, as amended, and as it comes before me, does not include a fire sprinkler system for the residential care facility component of the proposed development. I base this conclusion on the following considerations:

1. notwithstanding a direct invitation from the Court to confirm where in the evidence the Applicant’s development application included details of its proposed fire sprinkler system, the Applicant has not done so; and

2. the Applicant has confirmed in its submissions that its proposed development application would require amendment to include details of the fire sprinkler system for the residential aged care facility.

38. The Court extended to the Parties the opportunity to address it further in relation to their submissions on this point, but that opportunity was not taken up by the Parties.

39. SEPP Seniors cl 55 requires that a consent authority must not grant consent (emphasis added) to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.

40. Satisfaction of cl 55 of SEPP Seniors is a jurisdictional pre-condition to the grant of consent, and it is the satisfaction of that clause, and its provisions, that enlivens the Court’s power to grant consent in this appeal.

41. The provisions of cl 55 cannot be satisfied by the inclusion of one or more conditions upon the grant of consent, as the Court’s power to grant consent is only enlivened following (emphasis added) their satisfaction, and prior to the grant of consent.

42. Having considered the submissions of the Parties, I find that the power of the Court to grant consent to the Applicant’s development application DA/668/2018, for the demolition of existing structures, earthworks, tree and vegetation removal, and the construction of a seniors housing development, has not been enlivened as the jurisdictional pre-conditions within cl 55 of SEPP Seniors have not been satisfied.

43. I further conclude that, for this reason, the appeal must be dismissed, and further consideration of the contentions in this appeal is otiose.

Orders

44. The orders of the Court are:

1. the Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans;

2. the appeal is dismissed;

3. the exhibits are returned, except Exhibits A, B and 1.

……………………….

Michael Chilcott

Commissioner of the Court

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Decision last updated: 23 May 2019