Land and Environment Court New South Wales Medium Neutral Citation: East Coast Property Development Pty Ltd ATF East Coast Property Development Unit Trust v Northern Beaches Council [2022] NSWLEC 1305 Hearing dates: Conciliation Conference 21 March 2022 Date of orders: 15 June 2022 Decision date: 15 June 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld (2) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15 (3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $8000 within 28 days of the orders being made by the Court. (3) Development Application No. 2021/1805 for the demolition of the existing dwelling located on the subject allotment and the construction of a seniors housing development incorporating 5 x 3 bedroom in-fill self-care housing units and basement car parking for 9 vehicles, at 4 Alexander Street, Collaroy (Lot A DP 379308), pursuant to the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is determined by the granting of consent subject to the conditions set out in Annexure "A" to this agreement. Catchwords: DEVELOPMENT APPLICATION – infill seniors housing development – amended plans – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, cl 29 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cll 10.19, 10.20 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28, Sch 1 State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 26, 28, 30, 40, Div 6, Pt 4 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Warringah Local Environmental Plan 2011, cll 4.6, 6.1, 6.2 Texts Cited: Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development, March 2004 NSW Department of Planning and Environment, Apartment Design Guide Category: Principal judgment Parties: East Coast Property Development Pty Ltd ATF East Coast Property Development Unit Trust (Applicant) Northern Beaches Council (Respondent) Representation: Solicitors: McKees Legal Solutions (Applicant) Northern Beaches Council (Respondent) File Number(s): 2021/362068 Publication restriction: No Judgment 1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the actual refusal of Development Application No DA/2021/1805 by the Northern Beaches Planning Panel. The development application that was refused sought consent for demolition of all structures on site, tree removal and excavation followed by construction of a part-two/ part-three storey development comprising five three-bedroom apartments over partial basement carparking. Since the filing of the appeal with the Court, the development application has been amended. This judgement relates to the amended development application. The development is proposed at 4 Alexander Street, Collaroy (Lot A DP 379308). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 March 2022. I presided over the conciliation conference. Following the conciliation, amended plans and documentation was prepared and agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 4. 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: 1. The development application was made with the consent of the owner of the subject site. 2. The development application was lodged reliant on the provisions of the then State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors). State Environmental Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021. SEPP Housing was then amended on 8 March 2022. Relevantly, the amendment updated the savings and transitional provisions at sch 7A of SEPP Housing. Applying the provisions of sch 7A 2(a) of SEPP Housing, the instrument does not apply to a development application, made but not determined before the commencement date. 3. The provisions of SEPP Seniors remain relevant to the assessment of the development application. Accordingly, * I am satisfied that the site is in an accessible area with access to facilities and services not more than 400m from the proposed development: cl 26 of SEPP Seniors. * The site is connected to water and sewer infrastructure and an appropriate site analysis plan forms part of the development application: cll 28 and 30 of SEPP Seniors. * In determining the development application, I have given consideration to the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004 and the principles set out in Div 6 of SEPP Seniors. * The development application seeks to vary four development standards contained in Pt 4 of SEPP Seniors. They are the site frontage control (cl 40(3)), the 8m height limit (cl 40(4)(a), the 2-storey height limit (cl 40(4)(b)) and the requirement to have single storey development in the rear 25% of the site (cl 40(4)(c)). In each case the Applicant has prepared and filed a written request pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011 (LEP 2011) seeking to vary these standards. * In relation to the standard at cl 40(3) of SEPP Seniors, I am satisfied that compliance with the site frontage development standards is unreasonable or unnecessary in the circumstances of this development application on the basis that the objectives of the standard are met notwithstanding the variation to the control. Further, I am satisfied that the environmental planning grounds advanced in the written request, in particular the achievement of the promotion of the orderly and economic use of the land, are sufficient to justify the variation sought. * The standards at subcll (a),(b) and (c) of cl 40(4) of SEPP Seniors all relate to the height of the proposed building in relation to the subject site. The Applicant has prepared separate written requests directed to each of the development standards sought to be varied. Having considered these written requests, I am satisfied that each demonstrate that compliance with the respective development standards is unreasonable or unnecessary in the circumstances of this development application on the basis that the objective of the standards is met by the proposed development, despite the variations. I adopt the reasoning of the written requests in this regard. Further, I am satisfied that the environmental planning grounds advanced in the written request, in particular the constraints of the particular landform of the subject site, are sufficient to justify the variation sought. * I am satisfied that the proposed development will be in the public interest as it is consistent with the objectives for development in the R2 Low Density Residential zone. * I am satisfied that the requirements of cl 4.6 of LEP 2011 to allow the variation to the development standard are met. * Finally, cl 4.6(4)(b) of the LEP 2011 requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter. 1. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP Resilience and Hazards. The Statement of Environmental Effects includes a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development. 3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies. In determining the development application, I have taken into consideration the matters listed at cll 10.19 and 10.20. I am satisfied that the proposed development will not be visible from Collaroy Beach, does not change any existing access arrangements to Collaroy Beach, and is not considered likely to have any impacts on coastal processes. 4. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide (ADG). I have reviewed the amended development application against these provisions, and I am satisfied that adequate regard has been given to the design quality principles at Sch 1 of SEPP 65, and the objectives specified in the ADG. 5. Clause 29(2) of the Environmental Planning and Assessment Regulation 2021 requires an application for residential apartment development to be accompanied by a statement by a qualified designer. A complying design verification statement prepared by the architect Paul Buljevic (7768) accompanies the application. 6. In determining the development application, I have had regard to the objectives of the R2 Low Density Residential zone. 7. The site is identified on the maps in LEP 2011 as located in Class 4 Acid Sulfate Soils. Clause 6.1 of the LEP 2011 applies. The development application is accompanied by a Geotechnical Investigation Report which assesses the likelihood of acid sulfate soils on the site and notes that it did not identify their presence on the site. The clause is satisfied. 8. In accordance with cl 6.2 of LEP 2011, the Geotechnical Investigation Report accompanying the development application assesses the acceptability of the proposed earthworks and proposes a number of recommendations for the construction of the development. Compliance with the Geotechnical Investigation Report is a requirement of the annexed conditions. The clause is satisfied. 9. The development application was notified to adjoining and proximate properties. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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. 3. The Court notes that: 1. Northern Beaches Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application Number DA2021/1805 with the following: 1. Amended plans listed in Condition 1 of the Conditions of Consent provided as Annexure 'A' to this agreement; 2. Amended overland flow assessment dated 18 March 2022, prepared by Woolacotts Consulting Engineers; and 1. Updated clause 4.6 variation requests dated 29 April 2022, prepared by Boston Blyth Flemming Town Planners. 2. The Respondent uploaded the amended development application on the NSW planning portal on 13 May 2022. 3. That the Applicant filed the amended application with the Court on 19 May 2022. 4. The updated written requests made pursuant to clause 4.6 of the LEP 2011 which seek to vary development standards in clauses 40 (4) (a), 40 (4) (c), 40 (3), and 40 (4) (b) of SEPP Seniors are upheld. 1. The Court orders that: 1. The appeal is upheld 2. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15 (3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $8,000 within 28 days of the orders being made by the Court. 3. Development Application No. 2021/1805 for the demolition of the existing dwelling located on the subject allotment and the construction of a seniors housing development incorporating 5 x 3 bedroom in-fill self-care housing units and basement car parking for 9 vehicles, at 4 Alexander Street, Collaroy (Lot A DP 379308), pursuant to the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is determined by the granting of consent subject to the conditions set out in Annexure "A" to this agreement. …………………… D M Dickson Commissioner of the Court (Annexure A) (431025, 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: 15 June 2022