Land and Environment Court New South Wales Medium Neutral Citation: Roseg Pty Ltd v Northern Beaches Council [2023] NSWLEC 1301 Hearing dates: Conciliation Conference held on 31 May 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) The written request prepared by Ludvik & Associates Pty Ltd, dated 16 May 2022, prepared pursuant to clause 4.6 of the Warringah Local Environmental Plan 2011 and seeking a variation to the height of buildings located in the rear 25% area of the site not exceeding one storey standard, pursuant to clause 40(4)(c) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, is upheld. (3) Development Application No DA2020/0563 seeking demolition of existing structures, vegetation removal and construction of a seniors housing development comprising 16 dwellings with parking, consolidation of two lots and extinguishment of redundant rights of carriageway on land at Lots 11 and 10 in Deposited Plan 565686, also known as 16 and 18 Ralston Avenue, Belrose is determined by grant of consent, subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – seniors housing – flood management – breach in height development standard – cl 4.6 request for variation of standard – conciliation conference – 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, cll 49, 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 4, 5, 10, 13, 16, 40 State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Warringah Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 5.21 Texts Cited: Northern Beaches Community Consultation Plan Warringah Development Control Plan 2011 Category: Principal judgment Parties: Roseg Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Simpson (Solicitor) (Respondent) Solicitors: Messenger and Messenger Solicitors (Applicant) Northern Beaches Council (Respondent) File Number(s): 2022/374407 Publication restriction: Nil Judgment 1. This is an appeal against the refusal of Development Application DA2020/0563 (the application) by the Northern Beaches Council (the Council), seeking demolition of existing structures, vegetation removal and construction of a seniors housing development comprising 16 dwellings with 21 vehicle spaces and 12 bicycle space parking, consolidation of two lots into one lot, and extinguishment of redundant rights of carriageway, on Lots 11 and 10 in DP565686, also known as 16 and 18 Ralston Avenue (respectively), Belrose (together known as the site). 2. The application was lodged with the Council on 12 March 2020. The original application was notified to residents, with seven submissions received. The application was referred to Ausgrid, who provided no objections to the application. The Council issued a determination to refuse the application on 15 December 2021. 3. The applicant appealed against the refusal of the application, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Council agreed for the applicant to amend the plans and documents that support the application based on documents filed with the Court on 9 December 2022, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended application was renotified, and three submissions were received. 5. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties' request, was held in person, after a site view. 6. Based on the amended application and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA2020/0563, with conditions. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination pursuant to s 4.16 of the EPA Act and being satisfied of all relevant jurisdictional requirements, to grant consent to amended Development Application DA2020/0563, subject to conditions in Annexure A. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes the matters to be considered prior to determining the development application. The following jurisdictional requirements have been specifically considered and are satisfied: 1. Warringah Local Environmental Plan 2011 (WLEP): 1. Pursuant to cl 2.3 of the WLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. Pursuant to cl 2.3, the proposed development is not permissible in an R2 zone, however, the application is saved and is deemed permissible, pursuant to cl 4(1) and 16 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors). 2. The site is located within a flood prone area, as mapped by the Council. The application is supported by an amended Flood Management report, prepared by SGC, dated 31 May 2023, which is referenced in the conditions of consent. The requirements of cl 5.21 of the WLEP are sufficiently addressed by the amended application. 3. The amended application sufficiently addresses all the relevant objectives, aims, standards and requirements of the WLEP, however there is a recognised breach of the 8.5m height development standard by up to 1.41%, pursuant to cl 4.3. This (cl 4.3) height standard of the WLEP is numerically inconsistent with the height standard in cl 40(4)(a) of the SEPP Seniors, which prevails, pursuant to cl 5(3) of this policy. 4. I am satisfied that the requirements of the WLEP have been addressed, and that a variation in the cl 4.3 height development standard is not required to grant consent. 1. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004: 1. Due to the date of submission to Council, the application is saved from consideration of the most recent State Environmental Planning Policy (Housing) 2021, by dint of s 2(1)(a) of Sch 7A. Therefore, SEPP Seniors is the relevant policy for consideration of the application, pursuant to cll 4, 5(3), 10, 13(1) and 16. 2. The amended application sufficiently addresses the relevant provisions for seniors living, including relating to access, provision of services, compatibility with the surrounding landform, bulk /scale, design principles and amenity. 3. The proposed development complies with cl 40(4)(a) and (b) of the SEPP Seniors, however, breaches the height standard described in cl 40(4)(c), that requires a single storey in the rear 25% of a site. Therefore, the application relies on a cl 4.6 written request to vary the height standard, pursuant to cl 4.6 of the WLEP. 4. The proposed development presents as a two-storey building within the rear 25% of the site. The cl 4.6 written request provided to the Court explains that the non-compliance in the height standard does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity, including solar access. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk and scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard. 5. The Court must be satisfied to grant consent to the application that the cl 4.6 request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the WLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the height standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R2) in cl 4.3 of the WLEP and height standard (cl 40(4)(c)) in SEPP Seniors. The breach in the height standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The relevant concerns raised by residents have been considered in the design of the dwelling. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development. 6. I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed, and that a variation in the cl 40(4)(c) in SEPP Seniors height development standard should be granted. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Hazards): 1. The site has been described as historically used for residential purposes, consistent with the intended future development on the site. The requirements of s 4.6 of SEPP Hazards are addressed based on the historic residential purpose of the site and conditions of consent. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: 1. A BASIX Certificate (1091830M_02) issued on 12 July 2022 is relevant to the proposed development, as amended, and is identified in the conditions of consent. 1. Warringah Development Control Plan 2011 (WDCP): 1. The relevant requirements of the WDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original and amended applications were publicly notified in accordance with the WDCP and Council's Community Consultation Plan, and the submissions received have been adequately considered. 2. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions. The Court acknowledges the issues raised by residents are a significant concern, particularly with regards to flooding and stormwater overland flow. These issues have been reasonably addressed by the amended application. As observed by the Court during the site view, and confirmed by the parties' experts, stormwater overland flow appears to be derived from an upgradient catchment that is principally sourced beyond the site. The amended application relies on an amended flood management report, that has informed the design of the proposed development, and which seeks to direct these flows without adverse detriment to adjoining properties and within the capacity of the designed stormwater system. 1. Pursuant to cl 49 of the EPA Reg, the amended application has satisfied the Court with the provision of consent from relevant landowners of intended works. Grant of consent 1. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA2020/0563 can be granted consent, pursuant to s 4.16(1)(a) of the EPA Act, as it satisfies the relevant jurisdictional requirements, and specifically s 4.15(1). 3. 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. 4. The Court notes that: 1. The Court notes that 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 Development Application DA2020/0563, and rely upon the following amended plans and documents: 1. Updated Flood Management Report prepared by SGC dated 31 May 2023, Rev G. 2. BASIX Certificate No.1091830M_02 dated 12 July 2022 3. Updated architectural plans: * DA1000 Rev D dated 31 May 2023 * DA1001 Rev D dated 31 May 2023 * DA2000 Rev E dated 31 May 2023 * DA2001 Rev E dated 31 May 2023 * DA2400 Rev D dated 31 May 2023 * DA2401 Rev D dated 31 May 2023 * DA2500 Rev C dated 31 May 2023. 1. The amended application was filed with the Court on 9 December 2022. 1. The Court orders that: 1. The appeal is upheld. 2. The written request prepared by Ludvik & Associates Pty Ltd, dated 16 May 2022, prepared pursuant to clause 4.6 of Warringah Local Environmental Plan 2011 and seeking a variation to the height of buildings located in the rear 25% area of the site not exceeding one storey standard, pursuant to cl 40(4)(c) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, is upheld. 3. Development Application No DA2020/0563 seeking demolition of existing structures, vegetation removal and construction of a seniors housing development comprising 16 dwellings with parking, consolidation of two lots and extinguishment of redundant rights of carriageway on land at Lots 11 and 10 in Deposited Plan 565686, also known as 16 and 18 Ralston Avenue, Belrose is determined by grant of consent, subject to the conditions set out in Annexure 'A'. Sarah Bish Commissioner of the Court 22.374407 Annexure A (383619, 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: 16 June 2023