Land and Environment Court New South Wales Medium Neutral Citation: McDonagh Developments Pty Ltd v Georges River Council [2022] NSWLEC 1327 Hearing dates: Conciliation conference on 15 June 2022 Date of orders: 24 June 2022 Decision date: 24 June 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The Applicant is to pay $4,000 costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders. (2) The appeal is upheld. (3) Development consent is granted to development application no. DA 2021/0302 for demolition of existing structures and the infilling of a swimming pool, lot consolidation, tree removal and construction of 4 x 3 bedroom 2 storey dwellings and 2 x 2 bedroom single storey dwelling within an in-fill self-care housing development including strata subdivision, landscaping and site works at Lot 3 DP 529647 and Lot 1 DP 529647 otherwise known as 870 and 870A Forest Road Peakhurst NSW 2210 subject to the conditions set out in Annexure 'A' Catchwords: DEVELOPMENT APPEAL – seniors housing development - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 2A of Sch 1, cll 3, 55 Environmental Planning and Assessment Regulation 2021, cl 3 of Sch 6 Georges River Local Environmental Plan 2021, cl 1.8A Hurstville Local Environmental Plan 2012, cll 2.6, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Housing) 2021, cl 2 of Sch 7A State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004, cll 2.6, 4, 5, 15, 16, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 50, Pt 3, Div 2, Sch 3 State Environmental Planning Policy No. 55 – Remediation of Land State Environmental Planning Policy (Resilience and Hazards) 2021 Texts Cited: Hurstville Development Control Plan 1 Georges River Council, Community Engagement Strategy 2018-2028 Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development, March 2004 Category: Principal judgment Parties: McDonagh Developments Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: M Staunton (Applicant) Dr S Berveling (Respondent) Solicitors: Pickup Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/295804 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No DA2021/0302 seeking development consent for the demolition of existing structures and the construction of a seniors housing development consisting of six (6) x three (3) bedroom two storey dwellings and two (2) x two (2) bedroom single storey dwellings, landscaping works, site words, tree removal, lot consolidation and strata subdivision under the provisions of the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (Seniors Housing SEPP) (the DA), at 870 and 870A Forest Road Peakhurst legally described as Lot 1 and 3 in Deposited Plan 529647 and Lot 3 DP 529647 (the Site). 2. The proceedings were listed for hearing on 15 June 2022 and at the commencement of the hearing the parties advised the court that the contentions raised by the Respondent had been resolved following amended plans resulting from the joint conferencing of various experts and subject to agreed Conditions of Consent. Upon application, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 15 June 2022. The hearing was adjourned. I presided over the conciliation conference. 3. At the conciliation conference, the parties 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 conditions. The hearing was therefore vacated. 4. The amended application seeks approval for demolition of existing structures and the infilling of a swimming pool, lot consolidation, tree removal and construction of 4 x 3 bedroom 2 storey dwellings and 2 x 2 bedroom single storey dwelling within an in-fill self-care housing development including strata subdivision, landscaping and site works (the Proposed Development). 5. 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. 6. 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 an agreed detailed jurisdictional statement which includes an explanation as to how the jurisdictional prerequisites have been satisfied paying particular attention to the provisions of the Seniors Housing SEPP and the Hurstville Local Environmental Plan 2012 (HLEP). 7. I set out a summary of the parties' explanation below. 8. The registered proprietor of the Site is Mr Fan Liu who provided consent as owner of the Site to the lodgement of the DA by the Applicant on 21 October 2020. The consent form is found under Tab 2 of the Class 1 Application filed on 18 October 2021. 9. The DA was notified between 18 August and 8 September 2021, in accordance with Council's notification procedures in Section 2.2 of the Hurstville Development Control Plan 1 and in accordance with Council's notification procedures in Council's Community Engagement Strategy 2018-2028. 10. The Proposed Development was notified from 5 May 2022 and the parties advise that there has been one (1) further submission. 11. The DA was lodged with the Respondent on 5 August 2021 pursuant to the HLEP. The relevant instrument is the HLEP notwithstanding that the Georges River Local Environmental Plan 2021 (GRLEP) was gazetted on 8 October 2021 because pursuant to cl 1.8A of the GRLEP, if a development application has been made before the commencement of the GRLEP and the application has not been finally determined before that commencement, the application must be determined as if the GRLEP had not commenced. 12. The relevant differences between the HLEP and the GREP are that Seniors Housing is permissible in the R2 zone under the GREP, the floor space ratio (FSR) is reduced from 0.6:1 to 0.55:1 under the GREP and the other statutory controls remain the same. 13. The Site is zoned R2 Low Density Residential pursuant to the HLEP where development for the purposes of seniors housing is prohibited in the R2 zone under the HLEP however, seniors housing is permissible under cl 4 of Seniors Housing SEPP because the land is zoned primarily for urban purposes (namely, R2 Low Density Residential) and dwelling houses are permissible with consent. As there is an inconsistency in relation to permissibility between the Seniors Housing SEPP and the HLEP, the Seniors Housing SEPP prevails by operation of cll 5(3), 15 and 16 of the Seniors Housing SEPP. 14. The State Environmental Planning Policy (Housing) 2021 (Housing SEPP) does not apply to the Proposed Development because the DA was lodged with the Respondent on 5 August 2021 being before the commencement date of the Housing SEPP on 26 November 2021 (subcl 2(1)(a) and 2(2) of Sch 7A, Housing SEPP). 15. There are other relevant provisions of the HLEP and the Seniors Housing SEPP that are applicable to the Proposed Development which the parties also addressed in their agreed jurisdictional statement. 16. The development includes strata subdivision which is permissible under cl 2.6 of the HLEP and the Seniors Housing SEPP. A plan of strata areas is included in the architectural drawings filed 15 June 2022 at Sheet 14. 17. The Proposed Development includes demolition which is permissible pursuant to cl 2.7 HLEP and the Seniors Housing SEPP. Conditions of consent have been included in relation to demolition. 18. The Proposed Development complies with cll 40(4)(a) and 50(a) of the Seniors Housing SEPP with respect to maximum building height with the result that the Proposed Development cannot be refused on the grounds of height. I note that cl 4.3 of the HLEP prescribes a maximum building height of 9m whereas the Seniors Housing SEPP prescribes a maximum building height of 8m to the underside of the ceiling (cl 40(4)(a)). As there is an inconsistency between the height controls, the Seniors Housing SEPP prevails, and the Proposed Development is compliant with the maximum building height. 19. Floor space ratio (FSR) is prescribed in cl 4.4 of the HLEP as a maximum of 0.6:1. The Seniors Housing SEPP prescribes a "must not refuse standard" of FSR of 0.5:1 (cl 50(b)). The Proposed Development has an FSR of 0.363:1 which complies with cl 50(b) with the result that the development cannot be refused on the grounds of bulk and scale. 20. The Site does not contain a heritage item and is not located within a heritage conservation area so the provisions in cl 5.10 of the HLEP do not apply. 21. The parties submit that it is unclear whether the Site is within a flood planning area in order to engage the provisions of cl 5.21 of the HLEP. The reason for the uncertainty is that the Site is affected by an overland flow path. In any event, a flood study was submitted with the DA and has been updated with the amended Proposed Development, namely Flood Report 9/6/22 Issue C Prepared by United Hydraulic Consultants and filed on 15 June 2022. The overland flow was assessed as part of a Council adopted study in 2016 which included a consideration of climate change. 22. In response to the overland flow affecting the Site, the Proposed Development has been designed so that the non-habitable and habitable floor areas are above the relevant flood planning level. In addition, the portion of the Proposed Development, which is located over the overland flow path, is to be elevated on piers to minimise blockage. By elevating the Proposed Development over the flow path there is no change in flood behaviour as a result of the Proposed Development. The Proposed Development has a flood hazard of H1 and H2 and is considered to be medium risk – low hazard. Further, the flood study addresses the matters raised in cl 5.21 and conditions of consent are included which address the relevant provisions of cl 5.21 of the HLEP. 23. Finally, in relation to the HLEP, the Site: 1. is not affected by acid sulfate soils (cl 6.1, HLEP). 2. is not mapped as Sensitive Land (cl 6.2, HLEP). 3. currently contains the required essential services (cl 6.7, HLEP). 1. The Statement of Environmental Effects (SEE) at Tab 4 of the Class 1 Application filed 18 October 2021, includes at section 7.1 of the SEE information regarding contamination. The SEE refers to the longstanding residential use of the Site and as such the Court is satisfied that the Site is not contaminated (State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55), now Chapter 4 of State Environmental Planning Policy (Resilience and Hazards) 2021). 2. There are other relevant provisions of the Seniors Housing SEPP which the Court, as consent authority is required to consider prior to granting development consent and the parties addressed these in the agreed jurisdictional note. 3. A consent authority must not consent to a development application for seniors housing unless the consent authority is satisfied, by written evidence, that future residents of the Proposed Development will have access that complies with subcl 26(2) of the Seniors Housing SEPP to the facilities listed at subcl 26(1) Seniors Housing SEPP. The Applicant provided an Access Review Report on 19 May 2022, filed 15 June 2015, which states that access requirements can be readily achieved subject to recommendations being addressed. As noted on page 10 of the Access Review Report, there are public bus stops within 400m of the site which enable residents to access shopping facilities that have the services set out in cl26 of the Seniors Housing SEPP. There are pathways to these bus stops that are shallow in grade with an average grade of less than 1:14. 4. For this reason, I am satisfied that there is sufficient written evidence that future residents of the Proposed Development will have access that complies with subcl 26(2) of the Seniors Housing SEPP. 5. The land is not mapped as bushfire prone land (cl 27, Seniors Housing SEPP). 6. The SEE confirms that sewer and water is currently available to the Site as these are already servicing the existing dwelling houses thereby satisfying cl 28 of the Seniors Housing SEPP. 7. Clause 29 of the Seniors Housing SEPP requires consideration by the Court, as consent authority, of the matters in cl 25(5)(b)(i), (iii) & (v) as follows: (i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development, (iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision, (v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development, 1. These cl 29 considerations are addressed as follows: 1. The Proposed Development has considered the overland flow path and potential flooding, and the impacts on trees and vegetation. The buildings have been amended to ensure amenity to the existing land and approved land uses in the vicinity of the site. 2. The Proposed Development meets the requirements of cl 26 of the Seniors Housing SEPP. There are existing footpaths, pedestrian crossing and bus stops in close proximity. Sewer, water and essential services are all currently available. The Proposed Development will make good use of existing infrastructure. 3. The Proposed Development is located in an area that is characterised by dwelling houses and older medium density residential forms of development. The reduction in number of dwellings for the Proposed Development from 8 dwellings to 6 dwellings has improved the neighbourhood fit. The front 4 dwellings are 2 storey and the rear 2 dwellings are single storey so that the built form fits comfortably into its surroundings and the residential uses are consistent with the approved and future uses permissible in the R2 zone. 1. A consent authority must not consent to a development application for seniors housing unless the consent authority is satisfied that the applicant has taken into account a site analysis as required by cl 30 of the Seniors Housing SEPP. A Site Analysis Plan is included as Sheet 13 in the Architectural Plans dated 13/6/22 (Rev G-2) drawn by Forerunners Designs filed 15 June 2022. There is further relevant information in the SEE, the site survey and in the Flood Study. The SEE also provides commentary on the site and surroundings. 2. 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 have been taken into consideration in the design of the development pursuant to cl 31 of the Seniors Housing SEPP, which is referenced in the SEE at pages 34-41. 3. Clause 32 of the Seniors Housing SEPP provides that a consent authority must not consent to a development application made for seniors housing unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Pt 3 Div 2 of the Seniors Housing SEPP. The design principles are set out in cl 33 to 39 of the Seniors Housing SEPP. As set out on pages 29-30 of the SEE, consideration has been given to the design principles set out in Pt 3 of Div 2 in preparing the plans for which consent is sought. The Planners in their Joint Expert Report filed 3 June 2022, also agree that the Proposed Development had increased setbacks and now presents as a compatible development which allows acceptable solar access, visual and acoustic privacy and neighbourhood amenity. 4. Clause 40(1) of the Seniors Housing SEPP provides that a consent authority must not consent to a development application made for seniors housing unless the consent authority is satisfied that the proposed development complies with the development standards set out in subcl 40(2) to 40(4). I am satisfied that those standards are met as follows: 1. The minimum site area required is 1000m2 (cl 40(2)). The Site has an area of 1764m2. 2. The Site frontage must be 20m wide at the building line (cl 40(3)). The Site frontage at the building line exceeds 20m. 3. Clause 40(4) prescribes 3 height development standards in (a), (b) & (c) as follows: 1. cl 40(4)(a) prescribes a maximum building height to underside of ceiling of 8m. The development complies; 2. cl 40(4)(b) prescribes a maximum number of storeys of 2 adjacent to a boundary. No building exceeds 2 storeys; 3. cl 40(4)(c) prescribes that no building in the rear 25% area of the site shall exceed 1 storey. All buildings in the rear 25% of the site do not exceed 1 storey; 1. Under cl 41(1) of the Seniors Housing SEPP, a consent authority must refuse development consent for self-contained dwellings unless there is compliance with the standards set out in Sch 3 of the Seniors Housing SEPP. The Access Review Report states and the Court can be satisfied that the DA and therefore the Proposed Development, complies with the standards set out in cl 41(1) of the Seniors Housing SEPP. 2. Clause 50 of the Seniors Housing SEPP contains "must not refuse standards" for self-contained dwellings as follows: 1. If all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys), and I note that all proposed buildings are 8m or less to the underside of the ceiling. 2. If the density and scale of the buildings when expressed as a FSR is 0.5:1 or less, and I note that the FSR of the Proposed Development is 0.363:1 which is less than 0.5:1. 3. If in the case of a development application made by a social housing provider—a minimum 35 square metres of landscaped area per dwelling is provided, and I note that the development application is not made by a social housing provider. Also, in any other case, a minimum of 30% of the area of the site is to be landscaped, and I note that the landscaped area of the site is 31.69% which exceeds the 30% requirements. 4. If, in relation to that part of the Site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15% of the area of the site (the Deep Soil Zone). Two-thirds of the deep soil zone should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3 metres. I note that the Proposed Development has a deep soil area of 21%. 5. If living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, and I note that the living rooms and private open spaces of 70% of the dwellings will receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. 6. In relation to private open space (POS) for in-fill self-care housing, if in the case of a single storey dwelling or a dwelling that is located, wholly or in part, on the ground floor of a multi-storey building, not less than 15 square metres of private open space per dwelling is provided and, of this open space, one area is not less than 3 metres wide and 3 metres long and is accessible from a living area located on the ground floor. I note that all dwellings in the Proposed Development have a minimum POS of 15m2 which includes an area of 3m x 3m which is accessible from the living area on the ground floor. 7. If at least 0.5 car spaces for each bedroom are provided where the development application is made by a person other than a social housing provider, and I note that the Proposed Development contains 16 bedrooms which requires 8 parking spaces which are provided. 1. Accordingly, the Court is satisfied that the Proposed Development satisfies the requirements of the Seniors Housing SEPP. 2. The Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) continues to apply instead of the Environmental Planning and Assessment Regulation 2021 (see cl 3 of Sch 6 of the Environmental Planning and Assessment Regulation 2021) to applications submitted but not finally determined before 1 March 2022. 3. Clause 2A of Sch 1 of the EPA Reg 2000 relevantly requires a development application for any BASIX affected development to be accompanied by a BASIX certificate issued no earlier than 3 months before the date on which the application is made. 4. A BASIX affected development is relevantly defined in cl 3 EPA Reg 2000 to include development that involves the erection of a building containing at least one dwelling. The Proposed Development seeks development consent for erection of 6 buildings with more than one dwelling. A BASIX certificate number 1299618M_02 dated 14 June 2022 has been filed and is dated not earlier than 3 months before the date on which the application was made. 5. For the reasons set out above, 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. 6. 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. Notations 1. The Court notes that: 1. Georges River Council, as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), agrees to the Applicants amending development application no. DA2021/0302 (amended DA) to rely on the following amended plans and additional material: 2. Plans relied upon: Description Reference No. Date Revision Prepared by Site Plan Sheet 1 13/6/22 G-2 Forerunners Designs Ground Floor Plan Sheet 2 13/6/22 G-2 Forerunners Designs First Floor Plan Sheet 3 13/6/22 G-2 Forerunners Designs Roof Plan Sheet 4 13/6/22 G-2 Forerunners Designs Elevations Sheets 5 & 6 13/6/22 G-2 Forerunners Designs Tree 2 TPZ Encroachments Sheet 10 13/6/22 G-2 Forerunners Designs Circulation Plan Sheet 11 13/6/22 G-2 Forerunners Designs Cut and Fill Plan Sheet 12 13/6/22 G-2 Forerunners Designs Site Analysis Sheet 13 13/6/22 G=2 Forerunners Designs Strata Areas Sheet 14 13/6/22 G-2 Forerunners Designs Landscape and Deep Soil Areas Sheet 15 13/6/22 G-2 Forerunners Designs Landscape Plan L-01 31/5/22 G Forerunners Designs Landscape Details L-02 31/5/22 G Forerunners Designs Stormwater Management Plans Drawing Nos D1 to D9 9/6/22 F United Hydraulic Consultants BASIX Certificate 1299618M_02 14/6/22 Chapman Environmental Services P/L Nathers Certificates 0006090030 14/6/22 Chapman Environmental Services 1. Documents relied upon: * Access Report DA 4 19/5/22 Prepared by Morris Goding * Flood Report 9/6/22 Issue C Prepared by United Hydraulic Consultants * Design Certificate H220002 9/6/22 Prepared by Nader Zaki United Hydraulic Consultants * Flood Certificate H220002 9/6/22 Prepared by Nader Zaki United Hydraulic Consultants * Design Certification 10/6/22 Prepared by Tim Rannaste Forerunners Designs * Waste Management Plan 30 May 2022 Prepared by Key Urban Planning 1. The Applicant uploaded the amended DA to the NSW Planning Portal on 15 June 2022. 2. The Applicants filed the amended DA with the Court on 15 June 2022. Orders 1. The Court orders that: 1. The Applicant is to pay $4,000 costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of these orders. 2. The appeal is upheld. 3. Development consent is granted to development application no. DA 2021/0302 for demolition of existing structures and the infilling of a swimming pool, lot consolidation, tree removal and construction of 4 x 3 bedroom 2 storey dwellings and 2 x 2 bedroom single storey dwelling within an in-fill self-care housing development including strata subdivision, landscaping and site works at Lot 3 DP 529647 and Lot 1 DP 529647 otherwise known as 870 and 870A Forest Road Peakhurst NSW 2210 subject to the conditions set out in Annexure 'A'. ………………………. E Espinosa Commissioner of the Court (Annexure A) (436910, pdf) (Architectural Plans) (5702695, pdf) (Landscape Plans) (5221803, pdf) (Stormwater plans) (3087134, 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: 28 June 2022