Land and Environment Court New South Wales Medium Neutral Citation: Wan v Ku-ring-gai Council [2021] NSWLEC 1133 Hearing dates: Conciliation conference on 4 February 2021 Date of orders: 17 March 2021 Decision date: 17 March 2021 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend the development application and rely on the plans and documents listed under Condition 1 in Schedule B of Annexure A. (2) The Applicant shall pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) The appeal is upheld. (4) Development consent is granted to development application number DA0584/18, lodged on 7 December 2018, seeking consent for the demolition of existing structures and construction of seniors living development comprising 6 town-houses, basement parking and associated works at 35 Westbrook Avenue, Wahroonga, in accordance with the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – seniors living – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 SEPP BASIX State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) Texts Cited: Ku-ring-gai Development Control Plan 2020 New South Wales Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guideline for Infill Development (March 2004) New South Wales Department of Planning, Industry and Environment, Proposed new Housing Diversity State Environmental Planning Policy (Housing Diversity SEPP) New South Wales Department of Planning, Industry and Environment, Explanation of Intended Effect for a new Housing Diversity SEPP (July 2020) Category: Principal judgment Parties: Yi Wan (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: G Hartley (Solicitor) (Applicant) A Hudson (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/87188 Publication restriction: None Judgment 1. COMMISSIONER: These proceedings arise following the Council's actual refusal of a development application (DA0584/18), lodged on 7 December 2018, for the demolition of existing structures and construction of seniors living development comprising 6 town-houses, basement parking and associated works at 35 Westbrook Avenue, Wahroonga (the Subject Site). 2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the proceedings are held under the Class 1 jurisdiction. 3. The statutory power to be exercised in determining the proceedings is s 8.7 of the EPA Act. 4. The Court arranged a hearing under s34 of the Land and Environment Court Act 1979 (LEC Act), however in the week prior to this hearing the parties advised the Court of their intention to reach an agreement prior to the listed hearing. A further conciliation conference was arranged under s 34(1) of the LEC Act between the parties, which was held on 4 February 2021. I presided over the conciliation conference. 5. A signed agreement was filed at the conciliation conference, stating that the parties had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to the conditions in Annexure A. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a filed Jurisdictional Statement. I subsequently note the following: Landowner's Consent 1. The subject matter of this appeal is the subject matter of a Development Application that has been made by Yi Wan, who is the landowner of the Subject Site. 2. The requirement for a drainage easement across neighbouring land has been removed in the latest revision to the development proposal. Notification requirements 1. The Development Application was appropriately notified by the Respondent pursuant to the EPA Act. Submissions were received and considered by Council. Council further notified the resident objectors of the hearing, now s34 conciliation date. No further submissions were received. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors) 1. Under the provisions of the Environmental Planning and Assessment Regulation 2000, the development must comply with the relevant provisions of the SEPP Seniors. 2. Clause 15 of the SEPP Seniors allows development on land zoned primarily for urban purposes for the purpose of any form of seniors housing. 'Land zoned primarily for urban purposes' is defined under cl 4(1) of the SEPP Seniors, which permits development under the SEPP if dwelling houses are permitted on the land. The Subject Site is located in an R2 zone, in which 'dwelling-houses' are permitted. The R2 zone therefore meets the requirement of the SEPP Seniors, being primarily for urban purposes. The proposed seniors living development is therefore permissible. 3. Clause 18 of the SEPP Seniors is as follows: 18 Restrictions on occupation of seniors housing allowed under this Chapter (1) Development allowed by this Chapter may be carried out for the accommodation of the following only— (a) seniors or people who have a disability, (b) people who live within the same household with seniors or people who have a disability, (c) staff employed to assist in the administration of and provision of services to housing provided under this Policy. (2) A consent authority must not consent to a development application made pursuant to this Chapter unless— (a) a condition is imposed by the consent authority to the effect that only the kinds of people referred to in subclause (1) may occupy any accommodation to which the application relates, and (b) the consent authority is satisfied that a restriction as to user will be registered against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, limiting the use of any accommodation to which the application relates to the kinds of people referred to in subclause (1). (3) Subclause (2) does not limit the kinds of conditions that may be imposed on a development consent, or allow conditions to be imposed on a development consent otherwise than in accordance with the Act. 1. I am satisfied that Condition 101 of the Parties' agreed conditions of consent meets the requirements of cl 18 of the SEPP Seniors, by requiring the necessary restrictions on the kind of occupants allowed in this development to be in place and certified prior to the issue of an Occupation Certificate. 2. I am satisfied that the proposed development meets the requirements of the SEPP Seniors Part 2 for the following reasons: 1. In accordance with SEPP Seniors cl 26, local facilities are readily accessible via an existing bus stop, located 150m from the proposed development, and that the Accessibility Report and proposed footpath works as shown on drawing DA17 revision 0 by McCullum Ashby Architects demonstrates the access requirements along the path of travel to this bus stop are met. 2. The Ku-ring-gai Council LGA-Bush Fire Prone Land Map demonstrates that the site is not identified as bushfire prone land, and thus SEPP Seniors cl 27 does not apply. 3. The Jurisdictional Statement confirms, and I accept, that the site will be connected to both water and sewerage systems in accordance with SEPP Seniors cl 29. 4. I have considered the criteria referred to in SEPP Seniors cl 25(5)(b)(i)(iii) and (v) and am satisfied that, due to the design, scale, density and nature of the proposed development as demonstrated on the architectural drawings, that the proposed development is compatible with surrounding land uses of the existing, developed R2 zone. Subsequently, cl 29 does not apply because a site compatibility certificate is not required. 1. Part 3 of the SEPP Seniors lists design requirements that must be met by the proposal. I am satisfied that the proposed development meets these requirements because: 1. A design statement was submitted as part of the Class 1 application that satisfies the requirements of SEPP Seniors cl 30. 2. In determining this matter, I have taken into consideration, and am satisfied that the proposal has taken into consideration, the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development, published by the Department of Infrastructure, Planning and Natural Resources in March 2004 as per SEPP Seniors cl 31. 3. In accordance with SEPP Seniors cl 33, I am satisfied that the architectural plans upon which this appeal relies demonstrate a development that: recognises and responds to, the desirable elements of the location's current character; maintains reasonable neighbourhood amenity and appropriate residential character; provides appropriate building setbacks, form and siting; adopts building heights that are compatible with adjacent development; utilises planting that is sympathetic with the streetscape, and; retains major existing trees. 4. In accordance with SEPP Seniors cl 34, I am satisfied that the architectural plans upon which this appeal relies demonstrate a development that considers the visual and acoustic privacy of neighbours in the vicinity and residents through appropriate site planning, the location of windows, the use of screening devices and landscaping including the retention of a mature camellia hedge to the northern boundary, by locating bedrooms away from driveways and parking areas, and using architectural screens where bedrooms are adjacent to paths. 5. In accordance with SEPP Seniors cl 35, I am satisfied that drawings DA15 and DA16, revision 0 by McCullum Ashby Architects demonstrate adequate daylight to the living areas of neighbours and the private open space of residents, and that north facing windows have been included, where practicable, to the proposed development. 6. In accordance with SEPP Seniors cl 36, the Stormwater Management Plans and Landscape Plan L02 demonstrate that the proposed development should adequately control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters through the use of permeable surfaces and by minimising paths, and that an on-site detention tank is included in the proposal. 7. I am satisfied that the architectural and landscape plans demonstrate site planning that allows observation of dwelling entries, public areas, driveways and streets, and surveillance of approaching people in accordance with SEPP Seniors cl 37. 8. I am satisfied that the architectural and landscape plans demonstrate that the proposed development will have obvious, safe and attractive access for pedestrians and motorists as required by SEPP Seniors cl 38. 9. I am satisfied that architectural drawing DA04 revision 9 demonstrates a waste facility that should maximise recycling through adequate sizing and its convenient location within the basement, adjacent to a lift. 1. Part 4 of the SEPP Seniors lists a number of development standards to be complied with. The proposed development meets these standards because: 1. The site is 1586m2 in area, which meets the minimum site size requirement of cl 40(2) of 1000m2. 2. The site has a frontage of 23.775m, which meets the requirements of cl 40(3), requiring a minimum site frontage of 20m measured at the building line. 3. The proposed building height is 7.9m, it is no more than 2 storeys in height, and the portion of the building to the rear 25% of the site is single storey. This meets all height requirements of cll 40(4)(a), (b) and (c). 1. Clause 50 of the SEPP Seniors lists a number of standards that cannot be used to refuse development consent for self-contained dwellings. As demonstrated by the architectural plans, the proposed development meets the following requirements of cl 50 including: 1. 50(a) The building height is less than 8m. 2. 50(c) The landscaped area is greater than 30% of the site area. 3. 50(d) Deep soil is achieved to greater than 15% of the site area. 4. 50(e) The proposed balconies are of adequate size and dimension. 5. 50(h) Parking provision exceeds the minimum requirements. 1. Clause 50(b) of the SEPP Seniors states that the consent authority must not refuse consent for a development if the floor space ratio (FSR) of the proposed building is 0.5:1 or less. The Subject Site has a total site area of 1,586m2 by Deposited Plan. The plans for the proposal provide for a total floor area of 794.8m2, which equates to an FSR of 0.5009:1. The proposal exceeds 0.5:1 by a total of 1.45m2. The Applicant has provided a Clause 4.6 Request to vary this development standard, prepared by Minto Planning Services, dated 16 February 2021. 2. Clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows— (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider— (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if— (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note— When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following— (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4. 1. In my assessment of the submitted Clause 4.6 Request I note the following: 1. Pursuant to KLEP cl 4.6(2), SEPP Seniors cl 50 is not expressly excluded from the operation of this clause, and KLEP cl 4.6 applies to this proposed development. 2. Pursuant to KLEP cl 4.6(3)(a) I have considered the written request and am satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case because the 1.45m2 exceedance will be imperceptible when viewed from the public domain or adjoining properties; and does not result in any unreasonable impacts on the amenity of adjoining properties or the streetscape. Furthermore, this breach does not result in any environmental impacts, including impacts on existing trees. 3. Pursuant to KLEP cl 4.6 (3)(b), I am satisfied that there are sufficient environmental planning grounds to justify contravening the development standard because the proposal is responsive to the aims of SEPP Seniors and specifically is of 'good design'. In cl 2, the aims of SEPP Seniors are 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. 1. For the reasons listed above, I am satisfied that the proposed development achieves these aims and achieves them in the manner listed in SEPP Seniors cl 2(2). The proposal furthermore represents a permissible development that results in the orderly and economic development of the site. 2. KLEP cl 4.6 (4)(a)(i) is satisfied for the reasons listed above. 3. I am further satisfied that, pursuant to KLEP cl 4.6 (4)(a)(ii), the proposed development will be in the public interest because, for the reasons listed above, it is consistent with the underlying objectives of the SEPP Seniors. Furthermore, in providing housing designed to meet the needs of the area's older or disabled population, in a manner which is responsive to the surrounding low density residential environment, and for the reasons established in the Jurisdictional Statement, the proposed development meets the objectives of the R2 – Low Density Residential Zone in which the development is proposed to be carried out. 4. Pursuant to KLEP cll 4.6(4)(b), and (5), under cl 64 of the Environmental Planning and Assessment Regulation 2000, concurrence of the Planning Secretary is assumed. 1. Subsequently, I am satisfied that the submitted Clause 4.6 Request justifies an appropriate degree of flexibility in applying the FSR development standard set by SEPP Seniors cl 50 to this particular development, meeting the aim of KLEP cl 4.6 (1)(a). 2. Schedule 3 of the SEPP Seniors sets out the standards concerning accessibility and useability for self-contained dwellings that apply to the proposed development. I am satisfied that the Disability Access Report by Lindsay Perry Access adequately verifies the compliance of the proposed development with the relevant standards in this schedule. I further accept that these standards are reinforced through the inclusion of conditions 22, 29 and 87 in the draft conditions of consent. Ku-ring-gai Local Environmental Plan 2015 (KLEP) 1. Pursuant to the KLEP, the site is located within an R2-Low Density Residential zone. This development is permissible within this zone under cl 15 of the SEPP Seniors. 2. The proposed development complies with KLEP cl 6.1 Acid Sulfate Soils as the site is identified as Class 5 on the Acid Sulfate Soils Map and is not within 500m of any adjacent Class 1, 2, 3, or 4 land on this map. 3. I am satisfied that the Geotechnical Investigation by STS Geotechnics and the Stormwater Management Plans by ACOR Consultants adequately demonstrate compliance with KLEP cl 6.2 Earthworks. 4. The objective of KLEP cl 6.3 is to protect, maintain and improve the diversity and condition of native vegetation, and applies to the portion of the front of the Subject Site is identified on the KLEP Terrestrial Biodiversity map as 'Biodiversity'. This corresponds with a grove of existing Sydney Turpentine Ironbark Forest (STIF). The Flora and Fauna Assessment by Ecoplanning identifies this area of STIF to be lacking some characteristic components from all structural layers, and the understorey in particular is heavily modified. 5. The proposed development would result in the removal of one Eucalyptus resinifera (Tree 11), but retains the remaining three native canopy trees and replaces with further planting of a mix of native and exotic trees, shrubs and groundcovers. The proposed planting is suitably biodiverse for a site of this size, and will facilitate further habit once established. Due to the condition and small size of the area of STIF on the Subject Site, the Flora and Fauna Assessment concludes, and I accept, that the impact of the removal of T11 is acceptable as the proposal retains adequate area for biodiversity and habitat. Based on this Flora and Fauna Assessment and the submitted Landscape Plans by Susan Read Landscapes, I am satisfied that the requirements under KLEP cl 6.3 are met with the proposed development. 6. I am satisfied that the Stormwater Management Plans by ACOR Consultants and the Landscape Plans demonstrate compliance with KLEP cl 6.5 Stormwater and water sensitive urban design. State Environmental Planning Policy No. 55—Remediation of Land (SEPP 55) 1. I accept the evidence of the filed SEPP 55 Contamination statement that, based on a desktop and visual assessment and given the historic nature of the site as residential, the Subject Site poses no risk of contamination and is suitable for residential and commercial land use. BASIX Certificate 1. An updated BASIX Certificate has been filed with the s34 Agreement to reflect the revised drawings. I am satisfied that this confirms the development will meet sustainability requirements if it is built in accordance with the commitments made under the certificate. To ensure this, Condition 81 of the proposed conditions has been imposed requiring compliance with the BASIX certificate to be certified prior to the issue of an Occupation Certificate. Proposed new Housing Diversity State Environmental Planning Policy (Housing Diversity SEPP) 1. Section 4.15(a)(1)(a)(ii) of the EPA Act requires, in the determination of a development application, the consideration of (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 Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) 1. I have had regard to the fact that there is a proposed new Housing Diversity SEPP that is currently the subject of consultation, but accept the evidence of the Jurisdictional Statement that this proposed SEPP is not a determinative issue. Conclusion 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I am further satisfied that the development application meets all relevant jurisdictional prerequisites and satisfies all relevant development standards. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. The Court orders: 1. Leave is granted to the Applicant to amend the development application and rely on the plans and documents listed under Condition 1 in Schedule B of Annexure A. 2. The Applicant shall pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is upheld. 4. Development consent is granted to development application number DA0584/18, lodged 7 December 2018, seeking consent for demolition of existing structures and construction of seniors living development comprising 6 town-houses, basement parking and associated works at 35 Westbrook Avenue, Wahroonga, in accordance with the conditions in Annexure A. ………………………. E Washington Acting Commissioner of the Court Annexure A (392624, pdf) Plans (7258393, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2021