Dukor 24 Pty Ltd v Northern Beaches Council [2018] NSWLEC 1315
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Land and Environment Court
New South Wales
Medium Neutral Citation: Dukor 24 Pty Ltd v Northern Beaches Council [2018] NSWLEC 1315
Hearing dates: 21 May 2018
Date of orders: 27 June 2018
Decision date: 27 June 2018
Jurisdiction: Class 1
Before: Chilcott C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to development application DA2017/0206, for demolition works and construction of a residential care facility, subject to the conditions of consent attached as Annexure 'A'.
(3) The exhibits are returned, with the exception of Exhibits A, B and 2.
Catchwords: Development Application: Residential care facility, deferred matter, desired future character, retention of distinctive environmental features; protection of flora.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability 2003
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Warringah Development Control Plan 2013
Warringah Local Environment Plan 2000
Warringah Local Environment Plan 2011
Cases Cited: GPC No 5 (Wombarra Pty Ltd v Wollongong City Council [2003] NSWLEC 268
Category: Principal judgment
Parties: Dukor 24 Pty Ltd (Applicant)
Northern Beaches Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
Solicitors:
Mills Oakley (Applicant)
S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2017/236706
Publication restriction: Nil
Judgment
Background
1. COMMISSIONER: Dukor 24 Pty Ltd (the Applicant) has appealed a decision by Northern Beaches Council (the Respondent) to refuse its development application (DA2017/0206) for demolition works and construction of a residential care facility at 1113 Oxford Falls Road, Frenchs Forest (the Subject Site).
2. The appeal is made pursuant to section s97(1) (now s8.7(1)) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
3. The Subject Site is formally described as Lot 1113 in DP 752038.
4. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 11 December 2017.
5. An inspection of the Subject Site was undertaken as part of the conciliation conference, and submissions taken from a number of resident objectors during the inspection.
6. The Parties were unable to resolve the contentions between them during the s 34 conciliation, and so the conciliation process was terminated, and the matter was listed for hearing.
7. The Applicant was granted leave by the Court to reply on amended plans and supporting documentation (including amended landscape plans and an amended statement of environmental effects) on 29 March 2010. The amended plans proposed the following:
1. demolition of existing structures;
2. construction of a 71 bed (reduced from an originally proposed 72 beds) residential care facility with 16 staff;
3. an amended layout for the facility to provide a built form reflecting a 'detached style housing';
4. on-grade car parking spaces for 36 vehicles (increased from an originally proposed 33 vehicles);
5. landscaping works and drainage works;
6. construction of internal roads.
1. At the commencement of the hearing, four residents sought leave to make submissions concerning the proposed development. With the consent of the Parties, submissions were received from the following residents:
1. Ms Jacquie Marlow, of Narrabeen, whose submission addressed:
1. the potential impact of the proposed development on native fauna, in particular on the eastern pygmy possum and powerful owl;
2. the proposed removal of trees and bushland associated with the proposed development and the potential impact of this on the functionality of vegetation corridors across the Subject Site which she said provided regional vegetation connectivity and supported wildlife movement;
3. the desirability of prohibiting future residents of the proposed development from keeping companion animals on the Subject Site.
1. Mr Richard Cover, a resident of Barnes St, Frenchs Forest, whose submission addressed:
1. the response of the proposed development to the desired future character of the area;
2. potential flora and fauna impacts arising from the proposed development;
3. the suitability of the Subject Site for the proposed development;
4. the potential bushfire risks associated with the proposed development;
5. the potential impact of increased traffic access to and from the Subject Site and the need for the Applicant to:
1. regulate the times of delivery vehicle access to the proposed development;
2. upgrade the footpaths and roads connecting the Subject Site to other footpaths and roads in the local area.
1. Ms Ann Sharp, a representative of the friends of Narrabeen Lagoon catchment, and resident of Curl Curl, whose submission addressed:
1. the footprint of the proposed development within the Middle Creek catchment;
2. the alignment of the proposed development with the desired future character of the area;
3. the potential impacts of the proposed development in relation to:
1. increased traffic and parking on the Subject Site;
2. the development's site coverage;
3. native flora ;
4. bushfire risk and its management;
5. stormwater run-off from hard surfaces and flows into a tributary of Middle Creek;
6. the location of asset protection zones vis-a-vis revegetation works and wildlife corridors on the Subject Site.
1. Mr John Dillon (on behalf of Ms Marilyn Dillon), a resident of Barnes Road, Frenchs Forest, whose submission addressed:
1. the potential of the proposed development to give rise to increased local traffic and, in particular, increased vehicle movements in the local area;
2. the adequacy of on-site parking within the proposed development; and
3. the benefits of retaining a row of cypress pines on the western boundary of the Subject Site.
Statutory context
Environmental Planning and Assessment Act 1979
1. The Environmental Planning and Assessment Act 1979 (EP&A Act) Section 79C(1) requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.".
1. Section 79C(3A) Development Control Plans further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
Roads Act 1993
1. Section 138(2) of the Roads Act 1993 (the Roads Act) provides that:
a consent may not be given with respect to a classified road except with the concurrence of RMS.
1. The Applicant has proposed the establishment of an Asset Protection Zone (APZ) within the Barnes Road reserve, and subject to consent under s.138 of the Roads Act as necessary, that would be subject to a Positive Covenant placed on the title of the Subject Site.
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
1. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) aims (see clause (cl) 2) to encourage the provision of housing (including residential care facilities) that will:
(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and
(b) make efficient use of existing infrastructure and services, and
(c) be of good design.
1. The SEPP further provides that the above aims would be achieved by:
(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and
(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and
(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.
1. The Parties agreed that the relevant local planning controls applicable to the proposed development are those contained WLEP 2000 (see below at [28] and [29]).
2. As a consequence, the application in this appeal is not made under the SEPP, as the applicable local planning controls do not prevent the development of housing for seniors or people with a disability that would otherwise meet the development criteria and standards specified in the SEPP.
3. The Respondent said in opening that, while the controls in the SEPP did not apply to the proposed development, the aims of the SEPP as provided in cl2(1)(b) and 2(1)(c) were of relevance in the appeal.
4. The Applicant submitted, that cl 55 of the SEPP, which requires that the proposed development include fire sprinkler systems, was the only provision of relevance in the appeal. This clause provides:
A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.
1. The Respondent said that a fire sprinkler system would be required as a condition of development consent should the proposed development be approved.
Warringah Local Environment Plan 2000
1. Warringah Local Environment Plan (WLEP) 2011 entered into force on 9 December 2011 (WLEP 2011). Under this plan the Subject Site is zoned a deferred matter, and, as a consequence (see cl 1.3(1A)), development on the Subject Site is subject to the provisions of WLEP 2000.
2. WLEP 2000 cl 3 provides the that purposes of that plan are:
(a) as far as possible, to integrate into one document all environmental planning instruments affecting the development of land in Warringah and ensure that this plan is the sole environmental planning instrument applying to the land to which it relates, and
(b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and
(c) to establish limits to the exercise of discretion with regard to the control of development, and
(d) to provide decision-making processes appropriate to the nature and extent of discretion to be exercised.
1. Development on lands to which WLEP 2000 applies is controlled by the provisions of Part 2 of the plan. Relevantly, these include the provisions of the following:
1. Clause 7, concerning development that requires consent, and which provides:
All development requires consent except:
(a) exempt development, being development of minimal environmental impact identified in Schedule 1 (Exempt development), when carried out in accordance with the requirements of that Schedule, and
(b) development identified in Schedule 2 (Other development not requiring consent), when carried out in accordance with the requirements of that Schedule.
1. Clause 12, concerning matters that must be considered before consent is granted, and which provides:
(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with:
(a) any relevant general principles of development control in Part 4, and
(b) any relevant State environmental planning policy described in Schedule 5 (State policies).
(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with:
(a) the relevant requirements made by Parts 2 and 3, and
(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.
(3) In addition, before granting consent for development classified as:
(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or
(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement, but nothing in a description of desired future character creates a prohibition on the carrying out of development.
Note. Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.
To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality.
1. Clause 14, concerning the manner by which the use of land will be controlled, and which provides:
(1) For the purposes of clause 12, development of land within a locality is classified by the relevant Locality Statement as being within one of three following categories:
(a) Category One,
(b) Category Two,
(c) Category Three.
(2) Notwithstanding subclause (1), subdivision, other than when exempt development, is Category Two development.
(3) Development of Category Three proposed on the site of a heritage item is taken to be development of Category Two if the consent authority is satisfied that:
(a) the retention of the item depends on the granting of consent to the proposed development, and
(b) the proposed development is in accordance with a conservation plan approved by the consent authority, and
(c) the granting of consent to the proposed development would ensure that all necessary work identified in the conservation plan is carried out, and
(d) the proposed development would not adversely affect the heritage significance of the heritage item or its setting, and
(e) the proposed development would not adversely affect the amenity of surrounding land.
1. Clause 18, concerning the control of built forms in a development, and which provides:
(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.
(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.
(3) Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control.
1. The Subject Site is located within Oxford Falls Valley, and its locality statement is provided within Appendix B of WLEP 2000. This appendix contains locality statements for areas within the Narrabeen Lagoon Catchment, including for Locality B2 Oxford Falls Valley.
2. Within this locality statement, the desired future character of the Oxford Falls Valley is described as follows:
The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.
Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.
The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.
A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.
Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.
1. The locality statement provides that Category Two development, that is development that may be consistent with the desired future character of the locality in this area, includes development the purposes of:
* agriculture
* housing
* housing for older people or people with disabilities (on land described in paragraph (c) under the heading "Housing density" below)
* other buildings, works, places or land uses that are not prohibited or in Category 1 or 3.
1. The locality statement includes guidance on the density of housing for certain developments, and within paragraph (c) of that section provides:
The maximum housing density is 1 dwelling per 20 ha of site area, except:
(c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29.
1. The proposed development is for the purpose of housing for older people or people with a disability. As the Subject Site adjoins a locality primarily used for urban purposes, and as a dwelling house is permissible on that locality, there is no maximum housing density applicable to the proposed development should it comply with the minimum standards set out in cl 29 of WLEP 2000.
2. Clause 29 of WLEP 2000 provides the following grounds on which applications for housing for older people or people with disabilities cannot be refused:
(a) building height, if all proposed buildings are 8 metres or less in height when measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point, or
(b) density and scale, if the density and scale of the buildings, when expressed as a floor space ratio is:
(i) 0.5:1 or less, except as provided by subparagraph (ii), or
(ii) 0.75:1 or less, for hostels and residential care facilities located within 400 metres walking distance of a public transport node (being a public transport facility such as a railway station, bus stop, or ferry wharf, that is serviced on a frequent and regular basis in daylight hours), or
(c) landscaped area, if a minimum of 35m2 of landscaped area per dwelling and 25m2 of landscaped area per hostel or residential care facility bed is provided, or
(d) parking, if at least the following is provided:
(i) in the case of a hostel or residential care facility, at least 1 parking space for each 10 beds in the hostel or residential care facility, and 1 parking space for each two persons to be employed in connection with the development and on duty at any one time, and 1 parking space suitable for an ambulance, and
(ii) in the case of dwellings, at least 0.5 car space for each bedroom where the development application is made by a person other than the Department of Housing or a local government or community housing provider, or 1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, the Department of Housing or a local government or community housing provider, or
(e) visitor parking, if, in the case of development that comprises less than 8 dwellings and is not situated on a clearway, no visitor parking is provided within the development, or
(f) landscaped areas, 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 clause 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 (preferably located at the rear of the site) of not less than the width of the site multiplied by 15% of the length of the site, or
(g) private open space for in-fill housing, if:
(i) 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, and
(ii) in the case of any other dwelling, there is a balcony with an area of not less than 6 square metres, that is not less than 1.8 metres in length and that is accessible from a living area
1. During the hearing the Parties agreed that the proposed development, as represented in the amended plans, satisfied the above standards, and so could not be refused on the basis of building height, density and scale, landscaped areas, parking, including visitor parking, or private open space for in-fill housing. Having reviewed the amended plans I am also satisfied that the proposed development is compliant with the requirements of cl 29.
1. Clause 40 of WLEP 2000 provides further requirements for developments that house older people or people with disabilities:
Support services:
Development for the purpose of housing for older people or people with disabilities must provide residents with adequate access to:
(a) shops, banks and other retail and commercial services that residents may reasonably require, and
(b) community services and recreation facilities, and
(c) the practice of a general medical practitioner.
Access is adequate only if:
(a) the facilities and services referred to above are located at a distance of not more than 400 metres from the site of the proposed development, or
(b) there is a transport service available to the residents who will occupy the proposed development:
(i) that is located at a distance of not more than 400 metres from the site of the proposed development, and
(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the relevant facilities or services, and
(iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive).
The consent authority must not consent to development for the purpose of housing for older people or people with disabilities on land that adjoins land in a locality used primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:
(a) home delivered meals, and
(b) personal care and home nursing, and
(c) assistance with housework.
In deciding whether the level of access residents have to each facility and service listed above is reasonable (whether provided by the management or by an external service provider) the consent authority will consider the following:
• the type of housing proposed and the needs of the people who are most likely to occupy that type of housing, and
• whether the type or scale of housing proposed could, or may reasonably be expected to, provide some facilities and services on-site in a cost-effective manner, and
• the affordability of any relevant facility or service.
If infrastructure for a facility or service is provided as part of the development, it will be available to residents when the housing is ready for occupation. In the case of a staged development, the buildings and works comprising the infrastructure can be provided proportionately according to the number of residents in each stage.
Wheelchair access:
Development for the purpose of housing for older people or people with disabilities must comply with the following access standards:
(a) site gradient
(i) if the whole of the site has a gradient of less than 1:10, 100% of the hostel or residential care facility beds and 100% of the dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, or
(ii) if the whole of the site does not have a gradient of less than 1:10, a percentage (which is not less than the proportion of the site that has a gradient of less than 1:10, or 50%, whichever is the greater, and which in this subparagraph is called the specified minimum percentage) of any hostel or residential care facility beds and the specified minimum percentage of any dwellings must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road or an internal road or a driveway that is accessible to all residents, and
(b) road access, at least 10% of any hostel or residential care facility beds and at least 10% of any dwellings which meet the requirements of paragraph (a) must have wheelchair access by a continuous path of travel (within the meaning of AS 1428) to an adjoining public road, and
(c) common areas, access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development, and
(d) adaptability10% of any hostel or residential care facility beds and 10% of any dwellings which meet the requirements of paragraph (a) must also have, or be capable of being modified so that they have, wheelchair access by a continuous path of travel (within the meaning of AS 1428) to all essential areas and facilities inside the hostel, residential care facility or dwellings, including a toilet, bathroom, bedroom and a living area.
Other principles and standards
Development for the purpose of housing for older people or people with disabilities must also comply with the standards and principles in Schedule 16.
1. During the hearing the Parties agreed that the proposed development, as represented in the amended plans, satisfied the standards within cl 40. Having reviewed the amended plans I am also satisfied that the proposed development is compliant with the requirements of cl 40.
1. Schedule 16 of WLEP 2000 establishes principles and standards for housing for older people or people with disabilities, and addresses the following points:
(1) Identification, including street signage at each intersection.
(2) Security, including, pathway lighting:
(3) Letterboxes in multi-dwelling developments
(4) Private car accommodation
(5) Accessible entry
(6) Exterior access
(7) Interior dimensions
(8) Living room and dining room design
(9) Kitchen design
(10) Main bedroom design
(11) Bathroom design
(12) Toilet design
(13) Access to kitchen, main bedroom, bathroom and toilet
(14) Laundry design
(15) Storage provision
(16) Door design
(17) Surface finishes for balconies and external paved areas.
(18) Ancillary items, including switches and general purpose
(19) Garbage storage
(20) Requirements concerning development applications made by, or by a person jointly with, the Department of Housing or a local government or community housing provider,
(21) Neighbourhood amenity and streetscape design.
1. During the hearing the Parties agreed that the proposed development, as represented in the amended plans, satisfied the above standards, and so satisfied the principles and standards set down within Schedule 16. Having reviewed the amended plans I am also satisfied that the proposed development is compliant with the requirements of Schedule 16.
1. As a consequence of specific features within the Subject Site, the following further provisions of WLEP 2000 are of relevance in this appeal:
1. Clause 56, concerning the retention of distinctive environmental features on sites, and which provides:
Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.
In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses.
1. Clause 58, concerning the protection of existing flora on a site, and which provides:
Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.
Warringah Development Control Plan 2000
1. Development on the Subject Site is also subject to the provisions of Warringah Development Control Plan 2000 (WDCP).
2. The Respondent confirmed at the hearing that the Applicant's development application and amendments thereto had been notified in accordance with the requirements set out in WDCP 2000.
Contentions
1. In addition to agreed position of the Parties with respect to the requirements of WLEP 2000 (see above at [28(1)], [29(1)] and [30(1)]), at the commencement of the hearing the Parties advised that, on the basis of the amended plans and other supporting documentation for which the Applicant had been granted leave, certain matters that had been in contention between them were resolved and were no longer pressed by the Respondent. These were:
1. the consistency of the proposed development with respect to the requirements of the SEPP;
2. the consistency of the proposed development in relation to the desired future character of the Oxford Falls Valley locality;
3. the consistency of the proposed development with requirements of WLEP 2000 with respect to the protection of existing flora;
4. the location of asset protection zones for the proposed development;
5. the consistency of the character and building design of the proposed development with the scale and design of adjacent development;
6. the suitability of the proposed development for the Subject Site;
7. the consistency of the support services within the proposed development with requirements of WLEP 2000, particularly in relation to proximity to public bus stops;
8. the response of the proposed development to submissions received following exhibition of plans by Council and, as a consequence, whether the development was in the public interest;
9. the retention of unique environment of features, in particular the retention of rocky outcrops on the Subject Site;
10. the consistency of the proposed development with the requirements of WLEP 2000 cl 40 with respect to the provision of a private bus for the use of future residents;
11. the demonstration by the Applicant that it has provided safe operational access, and emergency evacuation routes, consistent with the requirements of the NSW Rural Fire Service (RFS).
1. Notwithstanding this, during the hearing testimony was received from the following expert witnesses in order that the Court could be satisfied as to the resolution of contentions, and to address specific matters raised by local objectors at the commencement of the hearing:
1. town planning experts, Mr David Ryan (for the Applicant) and Ms Lashta Haidari (for the Respondent);
2. urban design experts, Ms Gabrielle Morrish (for the Applicant) and Mr Dominic Chung (for the Respondent);
3. landscape architecture experts, Mr John Cheetham (for the Applicant) and Mr Anthony Powe (for the Respondent)
4. ecology expert, Mr Michael Sheather-Reid (for the Applicant)
5. stormwater management expert, Mr Terry Hams (for the Applicant)
6. bushfire expert, Mr Graham Swain (for the Applicant).
Does the evidence of the town planning experts confirm resolution of the contentions?
1. The town planning experts, Mr Ryan and Ms Haidari, had prepared a joint report that was tabled as evidence during the hearing. In that report, the town planning experts had agreed that the amended plans for the proposed development had:
1. reduced the heights of individual buildings from three storeys to two storeys;
2. altered the building design such that the buildings would have the appearance of detached style housing, whilst, as far as practicable, meeting the operational requirements of a residential aged care facility;
3. incorporated and protected existing trees and natural landforms on the Subject Site.
1. The town planning experts also noted that, on the basis of additional material and information provided by the Applicant, it had been demonstrated to their satisfaction that the proposed community bus for use by future residents was satisfactory.
2. Finally, the town planning experts agreed that the proposed development, as represented in the amended plans, now satisfied the following matters that required consideration under cl12 of WLEP 2000:
1. consistency with the relevant general principles of development control in Part 4 of WLEP 2000;
2. consistency with the SEPP;
3. compliance with the relevant requirements of Part 2 and Part 3 of the development standards set out in the locality statement for locality B2 Oxford Falls Valley;
4. consistency with the desired future character of the locality;
1. The experts concluded in their joint report that, on the basis of the above points, contentions 1, 2, 5, 6, 7, 8 and 10 as summarised at [34] had been resolved to their mutual satisfaction.
2. In their evidence during the hearing Mr Ryan and Ms Haidari confirmed that none of the evidence provided by the objectors (see above at [8]), had provided cause for them to change the conclusions within their joint report.
3. They also noted that a number of matters raised by the objectors had been addressed through the inclusion of proposed conditions of development consent drafted by the Respondent in consultation with the Applicant, including limiting the number of residential rooms within the proposed development to 71 rooms. These conditions were tendered as evidence at the hearing.
4. Ms Haidari said that she had prepared the draft conditions of consent on behalf of the Respondent and had been explicitly mindful of residents' submissions in that drafting process.
Does the evidence of the urban design experts confirm resolution of the contentions?
1. The urban design experts, Ms Morrish and Mr Chung, had prepared a joint report that was tabled as evidence during the hearing, along with an single expert report prepared by Mr Morrish.
2. In the joint report, the urban design experts had agreed that the amended plans had:
1. incorporated and retained significant natural features of the Subject Site including existing trees and rocky outcrops;
2. ensured that rooms within the proposed development had been positioned so as to provide a reasonable separation using landscaped courtyards while minimising potential impacts to site topography and rocky outcrops;
3. balanced the landscape character of the site with breaks between the 'room pods' to reduce the bulk and massing of the proposed development and to allow rooms to sit appropriately within the landscape setting of the Subject Site;
4. provided outlooks for residents over the top of adjacent rows of rooms, providing high-quality outlooks and amenity to residents whilst reducing the apparent massing of the proposed development;
5. provided a reasonable, appropriate and compatible response to the existing character of other dwellings in the same zone near the subject site;
6. responded to the scale and form of detached housing in the precinct, and broader area, through use of a 2 storey built form and separation of those built forms by courtyards;
7. achieved visual consistency with the non-urban character of the locality;
8. minimised the visual bulk impacts of the development and responded to the existing site benching and landscape features;
9. achieved a low impact and low intensity development for the site;
10. achieved a character and bulk that was consistent and compatible with the neighbourhood, adjacent dwellings and the desired future character for Oxford Falls area, as envisaged under Council's controls.
1. These conclusions confirmed for me that contentions 2 and 5, as summarised at [34] had been resolved to the satisfaction of the urban design experts.
2. During the hearing, Ms Morrish and Mr Chung confirmed that none of the submissions of the local objectors (see above at [8]), had provided cause for them to change the conclusions of their joint report.
3. Ms Morrish added that, in her assessment:
1. the site coverage of the proposed development had not increased as a result of the amended plans;
2. while the location of the proposed development on the Subject Site had been shifted to the north, it had, in her assessment, improved landscape outcomes and facilitated improved retention of rocky outcrop landform features on the Subject Site (contention 9 at [34]).
1. In closing, the Respondent submitted that the detached building style design of the proposed development was consistent with the implementation of a planning principle for the design of seniors housing proposed by former Senior Commissioner Roseth in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268.
2. In that case, and in relation to the compatibility of a seniors housing development (under the then State Environmental Planning Policy No 5—Housing for Older People or People with a Disability (SEPP 5)) the Senior Commissioner had said that:
…where the size of a SEPP 5 development is much larger than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.
Does the evidence of the landscape, ecology and stormwater experts confirm resolution of the contentions?
1. Landscape architecture experts Mr John Cheetham (for the Applicant) and Mr Anthony Powe (for the Respondent) had prepared a joint report that was tabled as evidence during the hearing, along with a single expert report prepared by Mr Cheetham.
2. Expert evidence was also received during the hearing from expert ecologist, Mr Michael Sheather-Reid, and stormwater management expert, Mr Terry Hams. Both experts had prepared single expert reports and these reports were tendered as evidence during the hearing.
3. In their joint report, the landscape experts agreed that the Applicant's amended plans had:
1. satisfactorily resolved in the landscape related contentions between the parties, through:
1. providing further landscape treatments and upgrades immediately around the proposed building pods;
2. minimising potential impacts through shifting the internal driveway alignment to the north side of the site;
3. providing additional landscape plantings of trees and screen shrubs between proposed residential building pods;
4. using the existing sandstone outcrops wherever possible as natural features of the native landscape;
5. retaining 25 native trees within the sandstone rock outcrops;
6. providing additional native canopy tree plantings within the sandstone outcrops and between residential buildings;
7. relocating the proposed culinary and herb gardens which have also been enlarged to provide a full sized working kitchen garden;
8. retaining the memorial and formal gardens;
9. enhancing the landscape treatment on the site through the provision of additional trees and tall shrubs between residential buildings,
10. improving the retention of sandstone ridge lines and rock outcrops, and retaining native trees adjacent to and within the sandstone outcrop areas.
1. The landscape experts also noted that the amended plans had addressed contentions in relation to:
1. desired future character, through the Applicant's proposed amendments that:
1. revised the layout of residential buildings and provided the appearance of a low intensity and low impact residential development which was terraced and graded to reflect the landform of the site;
2. re-located proposed building footprints so as to minimise potential impacts on the two natural sandstone ridgelines/ outcrops that traverse the Subject Site in an east-west direction;
3. moved the lower of the residential buildings in a northwards direction so as to site them away from the Subject Site's lower sandstone outcrops;
4. retained several native trees within, and adjacent to, the sandstone outcrops.
1. the protection of existing flora, through:
1. proposing opportunities to remove identified weed species and some moribund trees on the Subject Site and replace these with endemic and exotic trees and shrubs species that are compatible with the Oxford Falls Valley locality character and existing vegetation communities;
2. the vegetation management plan that included a replanting program of the lower, northern pasture meadows within the Subject Site and which will add trees and shrubs and groundcover species to enhance the ecological and habitat value of the site.
1. These conclusions confirmed for me that contentions 2, 3 and 9, as summarised at [34], had been resolved to the satisfaction of the landscape experts.
2. During the hearing Mr Powe said that the evidence of the local residents did not give him cause to require amendments to his evidence in the joint report.
3. Mr Powe added that:
1. the shift of the proposed development to the north had provided a net benefit to the landscape outcomes in the proposed development in terms of the retention of a greater number of existing trees (contention 3 at [34]), the retention of rock platform areas (contention 9 at [34]), and the opportunity to increase landscaping between buildings (contention 5 at [34];
2. the Applicant now proposed retaining the screen of cypress trees on the western side of the Subject Site, along with replacement of any of those trees should they fail over time(contention 3 at [34]).
1. Mr Cheetham said that he had also noted the comments made by Mr Dillon in relation to the retention of cypress trees screen plantings along the western edge of the Subject Site, and that he would support of the proposed condition of development consent concerning the management of those trees to maintain the screening benefit they provided.
2. The Applicant agreed to include a condition of development consent to support the retention of the boundary screen plantings.
3. Mr Sheather-Reid, said during his testimony that in his opinion the proposed landscape plan would provide significant additional native and other trees and shrubs within the Subject Site, and that the overall density vegetation on the Subject Site would increase.
4. He further said that, in his opinion, the plantings proposed under the Applicant's landscape plan would increase the potential use of vegetation corridors across the Subject Site by eastern pygmy possums. He said that in his opinion there was currently no functional vegetation link across the Subject Site that might be utilised by this small mammal.
5. In response to the submission from Ms Marlow (see[8(1)]), Mr Sheather-Reid said that it was unlikely that placing a restriction on companion animals would have a significant impact, one way or the other, on the abundance of native fauna in the area or on the functionality of vegetation corridors across the Subject Site.
6. He said that, in his opinion, a more effective mechanism to increase the efficacy of vegetation corridors would be by way of introducing fencing to deter access by feral animals into those vegetated spaces.
7. In response to Mr Sheather-Reid's proposition, the Applicant agreed that a condition of development consent would be added to the draft conditions prepared by the Respondent that would require the installation of protective wildlife fencing along the southern boundary of the wildlife corridors located across the northern portion of the Subject Site.
8. Mr Hams said during his evidence that the proposed development would not give rise to any negative impacts on water quality within Narrabeen Lagoon.
9. He said the proposed landscaping and treatment of stormwater flows on the Subject Site would represent an improvement on the current situation, which he assessed, provided no effective treatment nor containment of stormwater flows.
10. He noted that future stormwater flows would be directed to on-site detention basins that would provide treatment of those waters prior to their discharge and would result in improved water quality of stormwater flows exiting the Subject Site.
11. These conclusions confirmed for me that relevant elements of contention 2, as summarised at [34], in relation water quality in Narrabeen Lagoon had been resolved to the satisfaction of the stormwater expert.
Does the evidence of the bushfire expert confirm resolution of the contentions?
1. During the hearing evidence was received Mr Graham Swain in relation to the management of bushfire risk associated with the proposed development.
2. An expert report from Mr Swain was tendered as evidence during the hearing, in which he responded to issues raised in relation to contention 4 (see above at [34]).
3. In his expert report Mr Swain said that he was satisfied that the matters raised in Council's contention in relation to the location of asset protection zones would be addressed by the application of conditions included within the draft conditions of development consent, including conditions for:
1. the establishment of an asset protection zone within the Barnes Road reserve through placement a positive covenant on the title of Lot 1113 in DP 752038; and
2. the preparation of an emergency management plan (EMP) to restrict emergency egress from the development to the primary access off the western portion of Barnes Road.
1. These conclusions confirmed for me that contentions 4 and 11, as summarised at [34], in relation asset protection zones and other requirements of the RFS associated with the proposed development, had been resolved to the satisfaction of the bushfire expert.
2. During his evidence at the hearing, Mr Swain said that he had discussed his expert report recommendations with the Respondent's bushfire expert Mr Watson, and who had concurred with those recommendations
3. Mr Swain noted that the EMP should include definition of an evacuation route and protocol for resident evacuation in the event of fire.
Conclusion
1. Based on the submissions of the Parties and the evidence of the expert witnesses, I am satisfied that: the contentions between the Parties have been resolved through the amended plans and further conditions of development consent agreed to by the Applicant in this hearing.
2. I am satisfied that the Applicant's proposed development is consistent with the aims and requirements of the SEPP to the extent that they are applicable to the proposed development.
3. Further, I am satisfied that I have considered the matters within WLEP 2000 that require consideration by the consent authority before a grant of consent can be made to the proposed development, and specifically in relation to the requirements of:
1. Clause 12, concerning matters that must be considered or complied with before consent is granted, and in which:
1. I am satisfied that the development is consistent with:
1. the relevant general principles of development control in Part 4 of WLEP 2000, including its requirements concerning the retention of distinctive environmental features on sites (cl 56), and the protection of existing flora (cl 58);
2. the SEPP, including its requirements with respect to good design (cl 2) and fire sprinkler systems (cl 55);
1. I am satisfied that the development will comply with the relevant requirements within Part 2 of WLEP 2000, including:
1. Clause 18, concerning the control of built forms in a development ( see below at [(2)]);
2. Clause 29, concerning grounds upon which applications for housing for older people or people with disabilities cannot be refused (see below at [(3)]).
1. I am satisfied that the development will comply with development standards set out in the Locality Statement for the B2 Oxford Falls Valley, in which locality the proposed development will be undertaken, to the extent that these apply to the development, noting that the requirements of cl 29 (see below at [(3)]) also apply and if satisfied cannot be used as a basis for refusal of the proposed development.
2. I am satisfied that the development is consistent with the desired future character of the Oxford Falls Valley as described in Locality Statement B2, including that the proposed development:
1. is of a style consistent with a detached style housing, conforms with the housing density standards set out in WLEP 2000, and will be a low intensity and low impact use of the Subject Site;
2. does not create development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway;
3. protects and enhances the natural landscape including landforms and vegetation of the Subject Site;
4. provides buildings that are located and grouped so as to minimise disturbance of vegetation and landforms and minimise the potential impact of associated works, including access roads and services;
5. provides buildings that are designed to blend with the natural landscape;
6. does not impact on any bushland buffer along Forest Way and Wakehurst Parkway;
7. does not include fencing that would detract from the landscaped vista of the streetscape;
8. will not create siltation or pollution of Narrabeen Lagoon and its catchment
9. will ensure that ecological values of natural watercourses are maintained.
1. Clause 18, concerning the control of built forms in a development, and I am satisfied that the development is consistent with:
1. the general principles of development control in WLEP 2000;
2. the desired future character of the locality and
3. the development standards set out in the Locality Statement.
1. Clause 29, concerning grounds upon which applications for housing of older people or people with disabilities cannot be refused, and I am satisfied that the development is consistent with the requirements of the clause with respect to building height, density and scale, parking, visitor parking and landscaped areas.
2. Clause 40, concerning requirements for support services and wheelchair access;
3. Schedule 16, concerning the principles and standards for housing for older people or people with disabilities set out therein;
4. Clause 56, concerning the retention of distinctive environmental features on sites, and in particular, that the development is to be designed to incorporate and be sympathetic to the rock outcrops, remnant bushland and watercourses on the Subject Site.
5. Clause 58, concerning the protection of existing flora on a site, and which provides such that the proposed development is sited and designed to minimise the impact on remnant indigenous flora.
1. I am satisfied that the requirements of s79C (now section 4.15) of the EP&A Act have also been met and, as a consequence, I have concluded that the proposed development on the Subject Site is in the public interest.
2. Consequently, I have concluded that the Applicant's proposed development for the demolition of structures and construction of a residential care facility at 1113 Oxford Falls Rd in Frenchs Forest should be approved, subject to the conditions of development consent agreed between the Parties, and tendered as evidence at the hearings.
Orders
1. The Court orders that:
1. The appeal is upheld.
2. Development consent is granted to development application DA2017/0206, for demolition works and construction of a residential care facility, subject to the conditions of consent attached as Annexure 'A'.
3. The exhibits are returned with the exception of Exhibits A, B and 2.
………………………….
Michael Chilcott
Commissioner of the Court
Annexure A (169 KB, pdf)
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Decision last updated: 27 June 2018