Land and Environment Court New South Wales Medium Neutral Citation: DJ Thompson Family Trust v Hornsby Shire Council [2021] NSWLEC 1638 Hearing dates: Conciliation conference on 5, 19 and 30 August 2021 Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [37] Catchwords: DEVELOPMENT APPLICATION – Seniors Living residential care facility – cl 4.6 variation request to breach of 2 storeys development standard – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.14, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 4, 5, 11, 15 -16, 18, 24 – 29, 32, 40, 48, 55 Hornsby Local Environmental Plan 2013, cll 4.6, 6.1, 6.2 Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 1997) cll 5, 6 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Hornsby Development Control Plan 2013 Category: Principal judgment Parties: DJ Thompson Family Trust (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Pickup (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Local Government Legal (Respondent) File Number(s): 2021/77065 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Hornsby Shire Council Planning Panel (Panel) of the development application DA 485/2020 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 6,105m2 parcel of land at 65-71 Burdett Street Hornsby comprising the four allotments Lot 1, Lot 2, and Lot 3 in DP 379371, and Lot 1 in DP 6345 (the Site). Each of the four allotments that comprise the Site is occupied by a single storey dwelling house. 3. The DA as originally submitted seeks consent for demolition of the existing structures and construction of a 2 storey nursing home containing 98 beds, with basement parking for 50 vehicles, tree removal and landscaping. 4. The DA was submitted to Hornsby Council (Council) on 25 June 2020. It was advertised and notified between 1 July and 21 July 2020, resulting in three submissions by way of objection. Council's Design Excellence Panel considered the DA on 12 August 2020. On 24 November 2020 the Applicant submitted additional material and revised plans (Amended DA). On 21 January 2021 the Amended DA was considered by the Design Excellence Panel and on 4 February 2021 the Council requested additional information. 5. On 18 March 2021 the Applicant lodged this Class 1 Appeal with the Court. On 28 April 2021 the Council filed its Statement of Facts and Contentions (SOFC). 6. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which commenced on 5 August 2021. In accordance with the Court's Covid-19 Policy in place at the time, there was no site view as part of the s 34 conciliation conference. No oral submissions were taken at the conference. 7. On 3 September 2021 the parties provided to the Court electronic copies of a s 34 agreement, signed and dated 3 September 2021, (s 34 Agreement), draft conditions of consent (Annexure B to the s 34 Agreement), copies of the amended plans and a joint submission on the jurisdictional pre-requisites to the granting of consent. Hard copies of these documents were received by the Court on 9 September 2021. 8. In the s 34 Agreement the parties noted that the Applicant has made further amendments to the DA, with the agreement of the Council, to incorporate amended plans and documents that are referred to in Annexure A of the s 34 Agreement (Final Amended DA). The s 34 Agreement also notes the Final Amended DA was loaded on the New South Wales (NSW) Planning Portal on 1 September 2020, and the Applicant had filed the Final Amended DA with the Court on 3 September 2021. 9. The main changes between the DA with the Class 1 Application and the Final Amended DA the subject of the s34 Agreement are: 1. At the basement level, the vehicular ramp has been extended in a northerly direction and a loading dock and truck turning area incorporated. The number of parking spaces remains unchanged. 2. At the ground floor (entry level) "Courtyard 5" has been removed, and replaced by the relocated and enlarged "Salon", two store rooms are introduced and casual sitting spaces increased in area to provide more seating. Courtyard 5 has been relocated to the first floor level above. 3. At the first floor level the setback of the northern wing from the eastern boundary has increased from 6m to 8.45m and its layout changed to a single loaded corridor with the removal of four rooms previously oriented towards the side boundary. The whole of the first floor has been replanned to accommodate the additional setback and two of the four rooms displaced. This results in a net reduction of two rooms on this level, and a reduction in the total number of rooms in the development from 92 to 90. 1. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 2. The parties identified the jurisdictional matters of relevance in these proceedings and agreed that there are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act. The parties also agreed that all the contentions raised in the SOFC have been resolved in the Final Amended DA and the agreed conditions of consent (Annexure B of the s 34 Agreement). Satisfaction of jurisdiction 1. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) applies to the development. The DA was made pursuant to Chapter 3 of the SEPP HSPD. The development is a 'residential care facility' as defined under cl 11 of the SEPP HSPD and, pursuant to cll 4(1)(a), 5, 15 and 16, is permissible with consent on the land. Other relevant or potentially relevant clauses of the SEPP HSPD are addressed in [13] to [23] below. 2. Clause 18 requires the imposition of certain conditions to ensure that the Development is only occupied by those persons prescribed by cl 18 together with the registration on title of a restriction as to user. The requisite condition is included in the conditions of consent. 3. Clause 24 and Clause 25 'Site Compatibility Certificates' – The Site is not one to which the application of a site compatibility certificate applies pursuant to cll 24 and 25 of the SEPP HSPD, although cl 29 calls up consideration of certain matters in cl 25. 4. Clause 26 'Location and access to services' - An access report prepared by Accessible Building Solutions dated 14 April 2021 demonstrates that accessible paths to facilities and to public transport are located within 400m of the site and have an average gradient of 1:14 or less. 5. Clause 27 'Bush fire prone land' – the site is not bush fire prone. 6. Clause 28 'Water and sewer' – the buildings that are currently located on the Site are connected to reticulated water and sewerage systems. The proposed development will connect to these existing systems as referred to at pp 19-20 of the Statement of Environmental Effects prepared by Boston Blyth Fleming, dated May 2020 (SEE). 7. Clause 29 'Consent authority to consider certain site compatibility criteria for development applications to which clause 24 does not apply' – Sub–clauses 25(5)(b)(i), (iii) and (v) are considered at pp 20-22 of the SEE. The parties agree that the sub-clauses are satisfied and that the proposal is compatible with them. 8. Clause 30 'Site analysis' – A site analysis plan DA03 accompanies the DA. Site analysis is discussed at pp 22-25 of the SEE. The relevant 'heads of consideration' within this clause are found to be satisfied. 9. Clause 32 'Design of residential development' – This clause includes consideration of cll 33 to 39 inclusive. These clauses have been considered at length within the SEE. The proposal is found to be compatible with these clauses. 10. Clause 40 'Development standards – minimum sizes and building heights' – This clause mandates compliance with: 1. Site size:- the site has an area greater than 1000 square metres, and therefore complies. 2. Site frontage:- the site has a site frontage greater than 20 metres and therefore complies. 3. Height in zones where residential flat building are not permitted: 1. Clause 40(4)(a) specifies the height of the building is to be 8m or less when measured from ground level to the ceiling. The development complies. 2. Clause 40(4)(b) specifies that a building that is adjacent to a boundary of the site must be not more than 2 storeys in height. The development does not comply, and is supported by a request to vary this standard made pursuant to cl 4.6 of the Hornsby Local Environmental Plan 2013 (HLEP). Refer to [26] to [29] below. 3. Clause 40(4)(c) specifies the height of the building in the rear 25% area of the site is limited to a single storey. The development complies. 1. Clause 48 prescribes certain "do not refuse" standards for development for the purpose of residential care facilities. An assessment against those standards is set out in the SEE at pp 35 and 36. The "do not refuse" standards relate to: 1. Building height – the standard is 8.0m (the development complies). 2. Density and scale – the standard is a floor space ratio of 1:1 (the development complies). 3. Landscaped area – standard is 25 square metres of landscaped area per residential care facility bed. The compliance area is 2400 sqm and 2502 sqm is provided. Although not strictly in accordance with the definition the area provided is acceptable on merit. 4. Parking for residents and visitors – standard is 1 space for each 10 beds, 1 space for each 2 persons employed and 1 space for an ambulance. As set out in the SEE and the Traffic and Parking Report prepared by Varga Traffic Planning and dated 20 November 2020 the proposed development complies with all of the parking provisions. 1. Clause 55 'Residential care facilities for seniors are required to have fire sprinkler systems' – Condition 20 of the consent mandates a schedule of essential fire safety measures to be submitted with the construction certificate and Condition 73 mandates annual fire safety services certification. 2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7, applies to the land and requires consideration of any contamination and associated remediation. The requirements of cl 7 are considered and addressed in the SEE and in the Geotechnical Investigation Report prepared by Geo-environmental Pty Ltd dated 13 January 2020 (Geotech Report). 3. In relation to the HLEP the relevant considerations are: 1. The development is for the purposes of a residential care facility which is not a permissible use in the R2 Low Density Residential Zone, although it is rendered permissible with consent pursuant to the provisions of cll 4(1)(a), 5, 15 and 16 of the SEPP HSPD. 2. Clause 4.6 enables the granting of consent to development that contravenes a development standard in another planning instrument. In this case the development contravenes the two storey building height standard in cl 40(4)(b) of the SEPP HSPD. This is addressed in [26] to [29] following. 3. Clause 6.1 Acid sulfate soils - the Site is not shown on the Acid Sulfate Soils Map. The Geotech Report addresses acid sulfate soils at p 7 and concludes there is no need for an acid sulfate soil assessment or management plan. 4. Clause 6.2 Earthworks – The Geotech Report (at pp 14 to 19) addresses this in detail and concludes that the geotechnical conditions on the Site are suitable for the proposed development. Engineering plans have been provided with the DA and conditions have been imposed to ensure stormwater and drainage will not have an adverse impact on the environment. A deferred commencement condition (Condition 1) has been imposed requiring the acquisition of a drainage easement across the downstream property at the rear of the Site to allow gravity discharge to Council's drainage system. 1. The development does not comply with cl 40(4)(b) of the SEPP HSPD. Clause 4.6 of HLEP allows the Court, standing in the shoes of the consent authority, to grant consent to the DA notwithstanding the contravention of cl 40(4)(b), subject to it being satisfied that the relevant preconditions in cl 4.6 have been met. 2. An updated written request for a variation to cl 40(4)(b) has been prepared by Boston Blyth Fleming dated 13 August 2021 ("Clause 4.6 Request"). I have reviewed the Clause 4.6 Request and am satisfied that: 1. the Clause 4.6 Request has adequately addressed the matters required to be demonstrated by subcl (3), and 2. the 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. 1. The Court can grant consent without the concurrence of the Planning Secretary pursuant to s 8.14(3) of the EPA Act but should take into account the matters in cl 4.6(5) of the HLEP. In this case the development is a local development with a minor non-compliance and adequately justified breach of the number of storeys adjoining a site boundary. In the circumstances of this case the contravention of cl 40(4)(b) of SEPP HSPD does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard. 2. The Court also notes the Council agrees in this case that the Clause 4.6 Request is well founded and is supportable. 3. Sydney Regional Environmental Plan No 20 – Hawkesbury Nepean River (No 2 1997) (SREP 20) applies to the Site and requires consideration of the matters set out in cll 5 and 6 when determining a DA. In essence cll 5 and 6 require consideration of how the Hawkesbury Nepean River system will be protected from impacts of the development. In this case the potential impacts relate to stormwater discharges. The stormwater plans submitted with the DA together with the conditions of consent will protect the Hawkesbury Nepean River in terms of stormwater quantity and quality. 4. With respect to the Hornsby Development Control Plan 2013 (DCP) the parties agree the relevant provisions have been considered. In particular the parties have had regard to clause 7.2.1 of the DCP which reflects the requirements of the SEPP HSPD. The Court is satisfied the development can be approved having regard to the relevant provisions of the DCP and s 4.15(1)(a)(iii) of the EPA Act. 5. With respect to the remaining matters for consideration under s 4.15(1)(a) to (e) of the EPA Act, the parties agree that: 1. All relevant planning instruments and the DCP have been considered (see above). 2. The likely impacts of the development are acceptable. 3. The Site is suitable for the proposed development. 4. The public submissions are a relevant consideration and have been taken into account in the amended DA and in the conditions of consent and the development can be approved. 5. They have had regard to the public interest as required by s 4.16(e) of the EPA Act and s 39(4) of the LEC Act. 1. The parties have also agreed on draft Conditions of Consent (at Annexure B of the Final s 34 Agreement) and have advised the Court that these may lawfully be imposed having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles. 2. Under s 8.15(4) of the EPA Act the Council needs to notify the Panel of the appeal and is subject to the control and direction of the Panel in connection with the conduct of the appeal. The Council has confirmed that the provisions of s 8.15(4) have been complied with and that it is authorised to enter into the s 34 agreement. Disposal of proceedings in accordance with the parties' decision 1. 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' agreement. 2. The Court notes: 1. that the Applicant has amended development application no. DA485/2020 with the agreement of Hornsby Shire Council as the relevant consent authority pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to incorporate the amended plans and documents referred to in Annexure A ("Amended Development Application"). 2. that the Amended Development Application has been lodged on the NSW planning portal on 1 September 2021. 3. that the Applicant has subsequently filed the Amended Development Application with the Court on 3 September 2021. 1. The Court orders: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Applicant being granted leave to rely upon the Amended Development Application as agreed of assessed. 2. The updated written request pursuant to clause 4.6 of Hornsby Local Environmental Plan 2013 seeking a variation of the 3 storey height control contained in clause 40(4)(b) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 prepared by Boston Blyth Fleming dated 13 August 2021 is upheld. 3. The Appeal is upheld. 4. Development Application No. DA485/2020 for demolition of existing structures, and construction of 96 bed residential care facility at 65 to 71 Burdett Street, Hornsby is approved subject to the conditions in Annexure B. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (94617, pdf) Annexure B (419809, 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: 22 October 2021