Land and Environment Court New South Wales Medium Neutral Citation: Thirdi Castle Cove Pty Ltd v Willoughby City Council [2021] NSWLEC 1286 Hearing dates: Conciliation 1, 23 and 30 April, 7 May 2021 Date of orders: 26 May 2021 Decision date: 26 May 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See Orders at [15] Catchwords: DEVELOPMENT APPLICATION – Seniors Living – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 ss 34, 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with Disability) 2004 Pt 3 Div 2, cll 4, 26, 27, 30, 32, 50 State Environmental Planning Policy No 55—Remediation of Land Willoughby Local Environmental Plan 2012 cll 4.3, 4.6 Cases Cited: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 203 Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 Ipoh Pty Ltd v Sydney City Council [2006] NSWLEC 102 RBFI Pty Limited v Wollongong City Council [2017] NSWLEC 174 Texts Cited: Planning for Bush Fire Protection Category: Principal judgment Parties: Thirdi Castle Cove Pty Ltd (Applicant) Willoughby City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) J Merlino (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/270766 Publication restriction: Nil Judgment 1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Willoughby City Council (Council) of DA-2019/50 (DA) for the demolition of existing structures and construction of a seniors' living facility comprising independent living units, associated landscaping and parking (development) at Lots 148 and 147 in Deposited Plan 30581 known as 12 and 19 Amaroo Avenue, Castle Cove (site). 2. On 1 April 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties, subject to the provision of greater detail in relation to a footpath to be constructed within the road reserve of Amaroo Avenue. 3. The proposed decision, if the detail of the footpath was acceptable, was to grant leave to amend the development application, to rely upon amended plans and to grant development consent. 4. The conciliation continued on 23 and 30 April 2021 and on 7 May 2021 the parties lodged an agreement pursuant to s 34 of the Court Act in a satisfactory form giving effect to the agreement in principle. 5. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to allow the amendment to the DA and s 4.16 of the EP&A Act to grant development consent. 7. The amendment to the DA involves minor changes to the proposed development and the inclusion of the construction of the footpath on Amaroo Avenue. I am satisfied that the proposed amendment to the DA is within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same. 8. State Environmental Planning Policy (Housing for Seniors or People with Disability) 2004 (SEPPP Seniors) and Willoughby Local Environmental Plan 2012 (WLEP 2012) apply to the site. I note: 1. The site is zoned R2 Low Density Residential in which zone dwelling houses are permissible and by virtue of cl 4 of SEPP Seniors the proposed development for the purposes of seniors housing is permissible on the site. 2. Amaroo Avenue is zoned both E4 – Environmental Living and R2 – Low Density Residential. 3. Roads are a permissible use in both the R2 and E4 zones. The footpath is to be constructed in the road reserve of Amaroo Avenue and is properly characterised as a road and is therefore a permissible use. It is not properly characterised as seniors housing (which is not permissible in the E4 zone) because the proposed footpath serves much more than the proposed development (see Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 203 and RBFI Pty Limited v Wollongong City Council [2017] NSWLEC 174). 4. It is implicit in the entering into of the agreement pursuant to s 34 of the Court Act that the Council has granted land owners consent to the amended development application. Even so, the Court has the power to provide owner's consent by virtue of s 39(2) of the Court Act (see Ipoh Pty Ltd v Sydney City Council [2006] NSWLEC 102). 5. The proposed development is compliant with the height control of 8.5m in cl 4.3 of WLEP 2012. 6. The proposed development exceeds the maximum floor space ratio (FSR) of 0:4:1 as the proposal provides for an FSR of 0.5:1 however the proposal complies with the maximum FSR permitted by cl 50 of SEPP Seniors and therefore an objection pursuant to cl 4.6 of WLEP 2012 is not required. 7. A Clause 4.6 Variation Request (cl 4.6 request) seeks a variation to cl 26(2)(b) of SEPP Seniors. The bus services which run from the relevant bus stop on Neerim Road are deficient by one service on a Sunday morning and accordingly, does not satisfy the requirements for access set out in cl 26 of SEPP Seniors. 8. The cl 4.6 request seeks to vary the standard in cl 26 on the basis that the development includes the provision of a private minivan for use by residents on Sundays between 8am and 1pm to transport residents to local services in Chatswood and any prearranged locations. The minivan is also available to be booked for an hour by residents a week on Mondays, Wednesday and Fridays, and at any other arrangement outside the above hours for an additional fee. 9. Condition 99 requires the provision of a private bus for the life of the development. 10. The proposed development has been amended to provide suitable vehicular access and parking that is compliant with AS2890.1 and AS2890.2, including access width, sightlines and bay dimensions. These amendments are shown in the Architectural Plans and Public Domain Civil Works Plans referred to in Condition 1. 11. Having considered the cl 4.6 request I am satisfied that: 1. Compliance with the development standard is unreasonable or unnecessary for the reasons set out in the cl 4.6 request at pp 8 and 9, relying upon Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 at [171]–[172], in essence that the residents will have access to all services and facilities required by the clause that they would reasonably require; 2. There are sufficient planning grounds to justify contravening the development standard for the reasons set out in pp 10 – 12 of the cl 4.6 request, in essence that the provision of the mini bus is an improvement in access available to the residents; and 3. The development is in the public interest being consistent with the R2 zone objectives as set out at pp 12 and 13 of the cl 4.6 request and achieving the objectives of the standard as set out above. 1. Accordingly, I am satisfied that future residents will have access as required by cl 26 of SEPP Seniors. 2. In accordance with cl 27 of SEPP Seniors I am satisfied that the development complies with the requirements of Planning for Bush Fire Protection by NSW Rural Fire Service dated November 2019 having regard to the Bushfire Hazard Assessment prepared by Blackash Bushfire Consultants dated 16 September 2020. 3. I am satisfied that the Applicant has taken into account a site analysis prepared in accordance with cl 30 of SEPP Seniors based upon the amended plans and the material lodged in support of the DA. For the same reasons I am satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2 of Part 3 of SEPP Seniors as required by cl 32 of SEPP Seniors. 4. An amended BASIX Certificate which reflects the current Unit Layout and design has been issued (BASIX Certificate number: 985665M_06) in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 5. State Environmental Planning Policy No 55—Remediation of Land applies to the land. The historic use of the site has been for residential purpose and there is no indication that any contaminant generating uses have been carried out on the site. The continued use of the site for residential purposes will not change and I am satisfied that the site is suitable for the proposed ongoing residential use. 6. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 7. Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders: 1. Leave is granted to the Applicant to rely upon the following amended documentation: Plan Name Drawing number Revision Date Prepared by Architectural plans Cover DA0.01 F 11.12.2020 Marchese Partners Existing plan DA1.01 E 6.8.2020 Marchese Partners Site analysis DA1.02 F 11.12.2020 Marchese Partners Lower ground DA2.01 F 11.12.2020 Marchese Partners Ground DA2.02 F 11.12.2020 Marchese Partners Level 1 DA2.03 E 6.8.2020 Marchese Partners Roof DA2.04 E 6.8.2020 Marchese Partners Layout 01 DA3.01 E 6.8.2020 Marchese Partners Layout 02 DA3.02 E 6.8.2020 Marchese Partners Layout 03 DA3.03 E 6.8.2020 Marchese Partners Layout 04 DA3.04 E 6.8.2020 Marchese Partners Layout 05 DA3.05 E 6.8.2020 Marchese Partners Layout 06 DA3.06 E 6.8.2020 Marchese Partners Elevation north and south DA4.01 E 6.8.2020 Marchese Partners Elevation east and west DA4.02 E 6.8.2020 Marchese Partners Section AA-BB DA4.03 E 6.8.2020 Marchese Partners Section CC-DD DA4.04 E 6.8.2020 Marchese Partners Carpark ramp DA4.05 E 6.8.2020 Marchese Partners Section EE-FF-GG-HH DA4.06 E 6.8.2020 Marchese Partners Existing ground height analysis DA4.07 E 6.8.2020 Marchese Partners Section II DA4.08 E 6.8.2020 Marchese Partners GFA SEPP DA5.01 E 6.8.2020 Marchese Partners NSA DA5.02 E 6.8.2020 Marchese Partners Deep soil DA5.03 F 11.12.2020 Marchese Partners Cross ventilation DA5.04 E 6.8.2020 Marchese Partners Solar access DA5.05 E 6.8.2020 Marchese Partners Storage diagrams DA5.06 E 6.8.2020 Marchese Partners Shadow diagrams DA5.07 E 6.8.2020 Marchese Partners Views from the sun DA5.08 E 6.8.2020 Marchese Partners View privacy diagram 01 DA5.09 E 6.8.2020 Marchese Partners View analysis 01 DA5.10 E 6.8.2020 Marchese Partners View analysis 02 DA5.11 E 6.8.2020 Marchese Partners Swimming pool detail DA5.12 E 6.8.2020 Marchese Partners 3D view DA6.01 E 6.8.2020 Marchese Partners Finishes board DA6.02 E 6.8.2020 Marchese Partners Height plane diagrams DA6.03 E 6.8.2020 Marchese Partners Old vs New DA6.04 E 6.8.2020 Marchese Partners Streetscape view DA6.05 F 11.12.2020 Marchese Partners Public Domain Civil Works Plans Cover sheet C100 S 6 May 2021 SGC Consulting Engineers Site plan C110 S 6 May 2021 SGC Consulting Engineers General arrangements plan, sheet 1 of 2 C201 S 6 May 2021 SGC Consulting Engineers General arrangements plan, sheet 2 of 2 C202 S 6 May 2021 SGC Consulting Engineers Longitudinal section along front of footpath C301 S 6 May 2021 SGC Consulting Engineers Longitudinal section along driveway C302 S 6 May 2021 SGC Consulting Engineers Longitudinal sections along neighbour's driveway C303 S 6 May 2021 SGC Consulting Engineers Cross sections along front of footpath, sheet 1 of 3 C451 S 6 May 2021 SGC Consulting Engineers Cross sections along front of footpath, sheet 2 of 3 C452 S 6 May 2021 SGC Consulting Engineers Cross sections along front of footpath, sheet 3 of 3 C453 S 6 May 2021 SGC Consulting Engineers Landscape plans Site plan and specifications L-01 I 10/9/20 Site Design and Studios Ground floor L-02 I 10/9/20 Site Design and Studios Communal open space L-03 I 10/9/20 Site Design and Studios 1st floor L-04 I 10/9/20 Site Design and Studios Boundary sections L-05 I 10/9/20 Site Design and Studios Planting plan – ground floor L-06 I 10/9/20 Site Design and Studios Tree impact plan L-07 I 10/9/20 Site Design and Studios Stormwater plans Cover sheet SW100 P 22.02.2021 SGC Consulting Engineers Lower ground floor plan SW201 P 22.02.2021 SGC Consulting Engineers Ground floor plan SW202 P 22.02.2021 SGC Consulting Engineers Details sheet 1 of 3 SW301 P 22.02.2021 SGC Consulting Engineers Details sheet 2 of 3 SW302 P 22.02.2021 SGC Consulting Engineers Details sheet 3 of 3 SW303 P 22.02.2021 SGC Consulting Engineers Erosion and sediment control plan sheet SW401 P 22.02.2021 SGC Consulting Engineers Erosion and sediment control details sheet SW402 P 22.02.2021 SGC Consulting Engineers Music catchment plan SW501 P 22.02.2021 SGC Consulting Engineers Hydraulic grade line analysis SW502 P 22.02.2021 SGC Consulting Engineers Report Stormwater trunk main line analysis prepared by SGC Consulting Engineers dated 23 February 2021 1. Leave is granted to amend the approved development to: Demolition of existing structures and construction of a seniors' living facility comprising independent living units, associated landscaping, parking and provision of a footpath and public domain works within the road reserve. 1. The applicant is to pay the respondents costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development Consent is granted to DA-2019/50 for the demolition of existing structures and construction of a seniors' living facility comprising independent living units, associated landscaping, parking at 12 and 19 Amaroo Ave, Castle Cove and provision of a footpath and public domain works within the road reserve subject to conditions contained in Annexure 'A'. ………………………… P Clay Acting Commissioner of the Court Annexure A (336765, 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: 26 May 2021