Land and Environment Court New South Wales Medium Neutral Citation: BPG Holdings (NSW) Pty Limited v Northern Beaches Council [2021] NSWLEC 1503 Hearing dates: Conciliation conference held on 23 August 2021 Date of orders: 02 September 2021 Decision date: 02 September 2021 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders: (1) The Appeal is upheld. (2) Development Application DA2020/0502 for demolition of existing structures and construction of a seniors housing development to accommodate twelve (12) self-contained dwellings, including associated basement level car parking and landscape works on land legally described as Lots 33 & 34 in Section 2 in DP4689 known as 34-36 Bardo Road, Newport is approved subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – seniors housing – access to services – clause 4.6 objection – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.14, 8.8(1) Environmental Planning and Assessment Regulation 2000 cl 50 Land and Environment Court Act 1979 s 34 Pittwater Local Environmental Plan 2014 cll 2.3, 5.10, 7.1, 7.2, 7.6, 7.10 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 cll 4, 26, 29, 30, 31, 32, 40, 41, 50 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021) Seniors Living Policy: Urban Design Guideline for Infill Development Category: Principal judgment Parties: BPG Holdings Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) A Gough (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 2021/12996 Publication restriction: No Judgment 1. COMMISSIONER: Development Application No 2020/0502 was lodged with Northern Beaches Council on 19 May 2020 seeking consent for demolition of existing structures and construction of a part one storey, part two storey seniors housing development containing 12 self-contained dwellings in a residential flat building arrangement over basement car park containing parking for 28 vehicles. The development includes consolidation of the two existing lots into one and the site is known as Nos 34 and 36 Bardo Road, Newport. 2. The Applicant is appealing the refusal of the application pursuant to the provisions of s 8.8(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Applicant had prepared amended plans that addressed those matters raised by the Council in its original Statement of Facts and Contentions filed on 10 March 2021 following an earlier conciliation conference in this Court. The application was formally amended through lodgement on the NSW Planning Portal on 18 August 2021 and the matter listed for hearing on 23 August 2021. The hearing commenced and evidence was heard from two objectors to the proposal. 4. However, as a result of the amendments made to the proposal, the parties requested the hearing be vacated and the matter converted to a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was also held on 23 August 2021. I presided over the conciliation conference, having been appointed presiding officer by the Chief Judge. 5. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. No site view was undertaken due to the Sydney lockdown. 6. The matter was heard pursuant to the provisions of s 34 of the LEC Act. 7. The amended proposal still comprises twelve dwellings with 28 parking spaces in the basement however, the form of the development has been altered to address the concerns of the Council. 8. An agreement under s 34(3) of the LEC Act has been reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 9. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons. 10. The proposed use, whilst not permissible in the R2 Low Density Residential Zone under the provisions of the Pittwater Local Environmental Plan 2014 (LEP), is permissible pursuant to the provisions of cl 4 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP2004) as in-fill self-care housing. 11. The proposal does not comply with the location and access requirements of cl 26 of SEPP2004 in that it would be, on completion of footpath works required as a condition of consent, 412m from a bus stop that meets the criteria specified in the clause. Presently without the footpath, the site is 447m from the bus stop. 12. The Applicant has filed a clause 4.6 variation request pursuant to the LEP provisions to vary the 400m development standard at cl 26 of SEPP2004 as it applies to the bus stop. The clause requires an accessible path to a public transport service that provides access to shops and services 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). 13. I have reviewed the request and in accordance with cl 4.6 of the LEP, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of the LEP). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the LEP). In particular, the Court notes that the Newport Shopping Centre is located approximately 400m from the site however, the full range of facilities required under the provisions of clause 26 are not. 1. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of the LEP are met. 2. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone. There are no objectives in cl 26 that apply to the access criteria. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met. 3. Pursuant to cl 4.6(5) of the LEP, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 4. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control. 5. The provisions of cl 29 of SEPP2004 require consideration of site compatibility and, having regard to those matters, I am satisfied that the criteria are met. 6. I am also satisfied that an appropriate site analysis has been undertaken and the provisions of cl 30 of SEPP2004 are met. 7. Having regard to the evidence, I am also satisfied the design of the development has had proper regard to 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 required under the provisions of cl 31 of SEPP2004 and the Design Principles set out in Division 2 of that policy. 8. The area of the site at 2,452m2 exceeds the minimum of 1,000m2 required under cl 40(2) and the site frontage at 40.23m also exceeds the 20m minimum under cl 40(3) of SEPP2004. 9. The height of the proposed development is below the height limit of 8m and in not more than 2 storeys, as provided for in cl 40(4) of SEPP2004. 10. The development also complies with the development standards in cl 41 of SEPP2004. 11. Clause 50 of SEPP2004 provides standards that cannot be used to refuse consent. The development meets the criteria with the exception of the floor space ratio (FSR) of 0.5:1. The LEP does not establish a maximum FSR and, having regard to the provisions of the policy, I am satisfied the development is appropriate. 12. The property is not heritage listed or is not within the vicinity of a heritage item or a heritage conservation area and therefore is not contrary to the provisions of cl 5.10 of the LEP. 13. The subject property is identified as being within an Acid Sulfate Soils Class 5 area however, consent is not required under cl 7.1 of the LEP as the site is not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum (AHD) and by which the water table is likely to be lowered by 1m AHD. 14. The terms of cl 7.2 Earthworks of the LEP have been considered and addressed through appropriate consent conditions. 15. The property is mapped as containing biodiversity and cl 7.6 of the LEP requires consideration of the likely impact of the development and satisfaction that either the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or if that impact cannot be reasonably avoided by adopting feasible alternatives, the development is designed, sited and will be managed to minimise that impact, or if that impact cannot be minimised, the development will be managed to mitigate that impact. Having regard to the evidence and the proposed conditions of consent that require retention of existing trees and additional plantings to provide appropriate natural buffer for the wildlife corridor. 16. Necessary public utility infrastructure is available to service the site as required under cl 7.10 of the LEP. 17. In regard to the provisions of State Environmental Planning Policy No 55—Remediation of Land, particularly as no change of use has been proposed and the site currently contains dwelling houses, I am satisfied on the basis of the evidence, that the site is suitable for the proposed use as required under cl 7(1) of that policy. 18. A BASIX Certificate dated 19 July 2021 has been prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulation 2000. 19. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent. 20. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed. 21. Matters raised by persons who made submissions to the Council concern traffic, pedestrian safety and construction impacts. I have considered these issues and the advice of the Council's traffic engineers and, on the basis of that evidence and the agreed conditions of consent, am satisfied that the proposal is satisfactory and that the impacts can be appropriately managed. 22. 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. 23. In making the orders to give effect to the agreement between the parties, 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 EPA Act. 24. For these reasons, I am satisfied that consent should be granted. 25. The Orders of the Court are: 1. The Appeal is upheld. 2. Development Application DA2020/0502 for demolition of existing structures and construction of a seniors housing development to accommodate twelve (12) self-contained dwellings, including associated basement level car parking and landscape works on land legally described as Lots 33 & 34 in Section 2 in DP4689 known as 34-36 Bardo Road, Newport is approved subject to the conditions set out in Annexure "A". ………………….. Sue Morris Commissioner of the Court Annexure A (358199, pdf) Architectural and Landscape Plans (17932864, 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: 02 September 2021