Land and Environment Court New South Wales Medium Neutral Citation: Binetter v Woollahra Municipal Council [2019] NSWLEC 1116 Hearing dates: 6 March 2019 Date of orders: 26 March 2019 Decision date: 26 March 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA 404/2017/A for the demolition of an existing dual occupancy and construction of a new seniors housing development comprising 7 self-contained units, basement level car parking and associated landscaping works is approved, subject to the conditions set out in Annexure "A". (3) The exhibits are returned, except for Exhibits B, C and 6. Catchwords: APPEAL – development application – seniors living – breach of development standards – impact on neighbours Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Woollahra Local Environmental Plan 2014 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council [2007] NSWLEC 827 Texts Cited: Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Peter Binetter (Applicant) Woollahra Municipal Council (Respondent) Representation: Solicitors: G Green, Pikes and Verekers (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/93290 Publication restriction: No Judgment 1. Between its intersections with Girilang Avenue and Captain Pipers Road, New South Head Road in Vaucluse follows a ridgeline that allows properties on its southern side to have elevated and expansive views of Port Jackson over the treetops of Vaucluse. At one such property, known as 63 New South Head Road, Mr Binetter seeks development consent to demolish an existing dual occupancy and construct seniors housing. A development application seeking the same was lodged with Woollahra Municipal Council ("the Council") on 29 August 2017. Following the expiry of the period after which a development application is deemed to be refused, Mr Binetter lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). The application was subsequently refused by the Council's local planning panel. 2. The appeal was listed before me for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 ("LEC Act"), which commenced with a site view on 21 September 2018. The parties were unable to reach an agreement at or following the conciliation. However, the parties agreed to me presiding over the hearing of the appeal, and agreed that in determining the appeal I can consider the evidence taken on site at the conciliation conference, including evidence and submissions made by resident objectors. 3. Prior to the conciliation conference, Mr Binetter sought and obtained leave to amend the development application in accordance with amended plans. The amended application is for the demolition of the existing dual occupancy and the construction of 7 self-contained seniors living units across three storeys and a lower ground floor level, and basement car parking for 11 vehicles. 4. In the period following the conciliation and prior to the hearing, Mr Binetter supplemented the amended application with new written requests to vary two separate development standards that apply to the proposal, one concerning the maximum number of storeys adjacent to the side boundary and the other concerning the maximum building height. Mr Binetter also provided new sightline diagrams to assist with determining any overlooking impacts, as well as shadow diagrams, an arborist's report concerning the retention of identified trees, and photomontages. 5. The additional information, together with the amended development application and the amended written requests, results in a proposed development that addresses the concerns initially raised in the proceedings by the Council through its Statement of Facts and Contentions. As a result, the Council now agrees to development consent being granted, subject to appropriate conditions of development consent. 6. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. 7. For the reasons set out below, I consider that the development has been designed appropriately to respond to the topography of the site and achieve consistency in the streetscape, and that it does not have unreasonable adverse impacts. As such, I have determined that it is appropriate to grant development consent, subject to appropriate conditions. The site and its locality 1. The site is legally described as Lot 7, DP 9395 and has a total area of approximately 1,083m2. As shown in Figure 1 it is irregular in shape. It has a frontage of 21.19m and a rear boundary of 26.79m. 1. The site is set above the footpath level of New South Head Road by approximately 6m, with the exception of the entrance stairs at the front of the site. A dual occupancy is currently located on a relatively flat area of the site, which has a west to east fall of 0.43m along the road frontage. However, consistent with the topography along the southern side of New South Head Road, it has a south to north fall of 5.79m through the middle of the site from the rear boundary to New South Head Road. 2. The site is currently occupied by a two-storey dual occupancy constructed of brick with a flat roof, together with a basement garage at street level and a swimming pool within the front setback. 3. Properties surrounding the site are predominantly characterised by two to three storey dwelling houses and dual occupancies. The property to the west of the site on New South Head Road contains a three storey detached dwelling house situated above the street level, and the property to the east on New South Head Road contains a two storey dwelling house. 4. Due to the road layout and the proximity of the site from the intersection of New South Head Road and Girilang Avenue, the rear of the site adjoins a number of properties that front Girilang Avenue or Captains Piper Road. To the east, 34 Girilang Avenue adjoins the rear portion of the site and contains a two storey dual occupancy development with above ground level parking and a swimming pool within the rear yard. To the southeast, 32-32A Girilang Avenue adjoins the south eastern corner of the site and contains a dual-occupancy development with swimming pools within the rear yard. To the south, 57 Captain Pipers Road adjoins the rear boundary of the site and contains a two-storey detached dwelling house. 5. About 260m east of the site, on New South Head Road between Laguna Street and Petrarch Avenue, there is a local shopping centre which contains a number of retail services including a fruit shop, butcher, pharmacy and post office. Adjacent to the corner of Girilang Avenue, 82m from the site, is a bus stop that provides regular bus services to Rose Bay shopping centre. A public reserve is located to the north west of the site, on the northern side of New South Head Road, with a lookout that is positioned to benefit from the views to the north (in the opposite direction to the site). The design of the proposal 1. As a result of a design that responds to the topography of the site, the building will appear as two or three storeys when viewed from the adjacent properties and within the streetscape. 2. The basement has been designed to allow vehicles to enter the site at grade, and provides parking for 11 vehicles. As the road level is 6m below the natural ground level of the site, a basement at this level allows for the additional space created by the excavation to be utilised for a lower ground floor that sits above the basement but below the ground level of neighbouring properties. The lower ground floor comprises a three bedroom unit with a north facing front terrace. A ground floor, first floor and second floor then sit above, with three units on the ground floor, two on the first floor and one on the second floor. All but one of the units have a north facing balcony or terrace accessed from the living areas, which will capture views over Vaucluse towards Port Jackson. 3. The design of the building therefore responds to the topography of the site and although it has five levels, above ground it has a maximum of three storeys along the side boundaries. As the lower ground floor is set below the ground level of neighbouring properties, it gives the appearance of a two-storey built form along the side boundaries for the front half of the site. The upper storey (second floor) is substantially recessed from the front boundary and has the appearance of a mansard roof form, allowing the rear half of the building to have the appearance of two storeys with a mansard roof addition. Two of the photomontages of the proposed built form, compared to the photographs of the current building, can be seen at Figure 2. The planning controls 1. The site is zoned R2 Low Density Residential pursuant to the Woollahra Local Environmental Plan 2014 ("WLEP 2014"). Clause 2.3(2) of the WLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 1. Development for the purposes of seniors living is an innominate prohibited use in the R2 zone. However, it is made permissible by the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("SEPP HSPD"). 2. The SEPP HSPD applies to the site by virtue of cl 4, which provides: 4 Land to which Policy applies (1) General This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if: (a) development for the purpose of any of the following is permitted on the land: (i) dwelling-houses, (ii) residential flat buildings, (iii) hospitals, (iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or (b) the land is being used for the purposes of an existing registered club. ... 1. The land on which the seniors housing is proposed falls within the description of "land zoned primarily for urban purposes", and dwelling houses are permitted on the land. As such the SEPP HSPD applies pursuant to cl 4(1)(a)(i). 2. Clause 15 of the SEPP HSPD provides as follows: 15 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy: (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing. 1. The chapter therefore allows "any form of seniors housing" on the site, "if the development is carried out in accordance with this Policy". 2. Clause 26 of the SEPP HSPD requires that a consent authority "must not consent" to a development application unless the residents will have access to shops, bank service providers, community services, recreation facilities and the practice of a general medical practitioner. It provides as follows: 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to: (a) shops, bank service providers 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. (2) Access complies with this clause if: (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area)—there is a public 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 the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3) … 1. Pursuant to cl 26(2)(b), the proposed development provides the requisite access as a result of the bus stop located in close proximity to the site, and the bus services available from that bus stop. 2. Clause 32 of the SEPP HSPD prevents a consent authority from consenting to a development application made pursuant to this Chapter "unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2." 3. The principles in Div 2 include, inter alia: 33 Neighbourhood amenity and streetscape The proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone. 34 Visual and acoustic privacy The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and (b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths. 1. In addition, cl 40 of the SEPP HSPD sets out a number of development standards that apply to the proposed development, as follows: 40 Development standards—minimum sizes and building height (1) General A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause. (2) Site size The size of the site must be at least 1,000 square metres. (3) Site frontage The site frontage must be at least 20 metres wide measured at the building line. (4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and (c) a building located in the rear 25% area of the site must not exceed 1 storey in height. (5) Development applications to which clause does not apply Subclauses (2), (3) and (4) (c) do not apply to a development application made by any of the following: (a) the Department of Housing, (b) any other social housing provider. 1. The height development standard pursuant to the WLEP 2014 is 9.5m. This creates an inconsistency with the height development standard in cl 40(4)(a) above, which requires the height to be 8m or less. In the event of an inconsistency, the SEPP HSPD prevails as cl 5(3) states as follows: (3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency. 1. This is re-iterated by s 3.28 of the EPA Act, which provides: 3.28 Inconsistency between instruments (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy … (emphasis added) 1. The applicable height development standard is therefore 8m. The proposed development has a height of 9.5m, which is consistent with the height development standard under the WLEP 2014, but causes a breach of cl 40(4)(a) of the SEPP HSPD. 2. Additionally, the proposed development does not comply with the standard in cl 40(4)(b) concerning the maximum storeys adjacent to the site boundary. Whereas cl 40(4)(b) requires that a "building that is adjacent to a boundary of the site… must be not more than 2 storeys in height", the proposed development has three storeys adjacent to the side boundaries. 3. Clause 4.6 of the WLEP 2014 applies to development standards arising pursuant to the SEPP HSPD, and allows development consent to be granted notwithstanding the contravention of the development standards. Clause 4.6 provides as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. … 1. The Woollahra Development Control Plan 2015 ("WDCP 2015") also applies. The site is located in the Vaucluse East Residential Precinct as outlined within the WDCP 2015, which is described at B 1.11.2 as having the following desired future character: "The Vaucluse East precinct is to maintain the evolution of low density residential development, generally through the introduction of well-designed contemporary dwelling houses. Development may be three storeys, but should establish a two storey presentation to the street with a reduced scale on the third floor, which will help reduce building bulk and scale. On sloping sites, development should step down the site to maintain views, protect the privacy and solar access of adjoining and adjacent properties, and minimise cut and fill. The built form should not detract from the unique features of the natural landscape, or be of such a scale that it dominates adjoining development, or is visually intrusive when viewed from the streetscape or the harbour. In particular development is to retain views of the harbour from public spaces and provide for view sharing from private properties; these can be achieved by providing suitable side boundary setbacks and fencing, roof forms and thoughtful distribution of building form across the site. Within this precinct, some land fronting Old South Head Road is zoned R3 Medium Density Residential, and may provide opportunities for renewal of existing building stock." 1. Other specific provisions of the WDCP 2015 that are relevant to the proposal are considered further below. Issues raised on the original application 1. In a Statement of Facts and Contentions filed on 8 June 2018, the Council raised a number of grounds upon which it contended, at that time, the application should be refused. They can be summarised as follows: * The proposed development is of excessive height and does not comply with the development standards of the SEPP HSPD relating to maximum number of storeys adjacent to the site boundary and building height. * The proposed development does not satisfy the Design Quality Principles of SEPP 65 - Design Quality of Residential Flat Development ("SEPP 65"). * The proposed development would result in unacceptable amenity impacts to adjoining properties, particularly in relation to privacy and overshadowing. * The proposed development involves excessive excavation. * The proposed vehicular access and accommodation is unsatisfactory. * The proposed development is not consistent with the broader public interest of providing development that meets the requirements of design quality and is compliant with the controls and minimises impacts to neighbouring developments, and it will therefore establish an undesirable precedent for future development in the locality. 1. As a result of the amended plans and additional information referred to above and the expert evidence outlined below, the Council now agrees that these matters are resolved. Resident evidence and submissions 1. The development application was notified in accordance with the requirements of the WDCP 2015. Ten submissions were received throughout the notification period. Further, on the listing of the appeal for a conciliation conference, a number of residents attended, gave evidence and made submissions on their objections to the development. This also involved attending dwellings at 63A and 61 New South Head Road, and 32 Girilang Avenue. 2. Following the termination of the conciliation and on listing the appeal for a hearing, a further written submission was received from one of the resident objectors. Additionally, two residents attended the hearing and gave evidence, and Mr Antony Robb, town planner, also gave evidence on behalf of the residents of 57 Captain Pipers Road. The concerns of the residents, expressed in the written submissions, on-site at the commencement of the conciliation conference and in court at the hearing, can be summarised as follows: * The bulk, scale and floor space of the proposed development is excessive, and has a footprint and massing that it is out of scale and out of character with surrounding development. * The proposal represents a significant intensification of land use and residential density, which is inappropriate for the low density residential zone. * The proposed use is incompatible with the zoning and the site's context. * The proposal is akin to a residential flat building which is out of character with the local area and is prohibited in the low density residential zone. * There will be additional traffic generated and the proposed vehicular access is unsatisfactory. * The proposal will result in adverse privacy impacts by overlooking from the proposed development to adjoining dwellings, and adverse acoustic impacts as a result of the large number of residents of the proposed development. * The proposal will cause overshadowing to adjoining properties. * The proposal exceeds the height limit development standard in the SEPP HSPD, and the request to vary the standard is not well founded. * There is excessive excavation proposed. * The proposal will cause noise and air pollution as a result of increased traffic, and will cause parking congestion. * The proposal will have an adverse impact on the public enjoyment of the crown land opposite the site. * The proposal does not comply with the floorplate control in the WDCP 2015, and does not comply with the controls of the Apartment Design Guide including building depth, building separation, communal open space and floor-to-ceiling heights. * The proposed development will result in a loss of views from 61 New South Head Road. * The proposal does not incorporate sufficient landscape screening along the site boundaries, or sufficient privacy screening on the balconies. * There is a risk of structural damage to the retaining wall along the rear boundary of 34 Girilang Avenue. * The proposed development will create a sense of enclosure to 57 Captain Pipers Road. * The 3 to 4 storey streetscape presentation is inconsistent with the prevailing two-storey character of the locality and with the desired future character of the area. 1. A number of residents were concerned about ensuring that the existing Jacaranda tree in the rear yard and the existing Canary Island Date palm on the eastern side of the property be retained, for privacy and aesthetic reasons. As a result, Mr Binetter has agreed to conditions of consent so as to retain those trees, and to replace the Canary Island Date palm with a semi-mature tree of the same species if its retention is unsuccessful. Expert evidence of town planners 1. Mr Max Moratelli (an employee of the Council) and Mr Gary Shiels (engaged by Mr Binetter) gave expert evidence on the town planning issues in the proceedings. They conferred and prepared a joint report, and gave evidence in Court. Their evidence is that, as a result of the amendments to the application, each of the contentions raised by the Council on the original proposal is resolved. 2. Mr Moratelli and Mr Shiels agree that the proposal presents as a two-storey building with a recessive third storey in a mansard roof form, which will present in context in the streetscape and satisfies the objectives of the desired future character for the locality. As such, their agreed opinion is that the Clause 4.6 for the number of storeys adjacent to the site boundary is well founded and the proposal will present acceptably as a two storey building to the adjoining neighbour to the west, although technically being three storeys with a storey set back in the Mansard style roof. 3. Mr Moratelli and Mr Shiels consider that the height, bulk and scale of the amended development application is acceptable, with the FSR now reduced to 0.93:1. Further, they opine that the proposal is consistent with the objectives of the floorplate control in the WDCP 2015 if that control is considered by the Court to apply, and they agree that it satisfies the side setback controls. 4. In considering the photomontages, Mr Moratelli and Mr Shiels opine that they demonstrate that the proposal improves the streetscape presentation compared to the current building and another approved scheme, and that it is consistent with the current character of the streetscape. 5. Their agreed evidence is also that the amenity of neighbouring properties is not adversely impacted by the proposal. Mr Shiels opines, and Mr Moratelli agrees, that the privacy of neighbours will be maintained with a screen and landscaping which are consistent with the Council's planning controls. They also agree that shadow diagrams have been provided and demonstrate compliance with the WDCP 2015 overshadowing controls, and as such there is no unreasonable overshadowing caused by the proposal. 6. They also agree, inter alia, that: * The proposal satisfies the design quality principles of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, * The amount of excavation has been greatly reduced and is now acceptable as it is limited to only what is required to satisfy the requirements of the WDCP 2015 with respect to car parking, and * The car parking satisfies the WDCP 2015 and the Australian Standard requirements for numbers, size of spaces, access and sightlines. Development consent should be granted 1. On the basis of the expert evidence before the Court and for the following reasons, I accept that it is appropriate for development consent to be granted, subject to the agreed conditions. Breach of the development standard concerning the number of storeys adjacent to the boundary 1. As set out above, cl 40(4)(b) of the SEPP HSPD imposes a development standard that "a building that is adjacent to a boundary of the site must be not more than 2 storeys in height." The proposed development is 3 storeys in height at the side boundaries, although the third storey appears as a mansard roof form significantly recessed from the front, and is also recessed from the side. 2. Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: * The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), * The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)), * The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and * The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 1. I accept that each of these elements has been satisfied and that, therefore, there is power to grant development consent notwithstanding the breach of the development standard in cl 40(4)(b) of the SEPP HSPD. 2. Firstly, the request establishes that compliance with the requirement for the building to be no more than 2 storeys adjacent to the boundary is unreasonable and unnecessary. It does so by using the note to the clause as a useful guide to the objective of the development standard in cl 40(4)(b), although the note does not strictly form part of the SEPP HSPD. That note states: The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. 1. Consistent with the first test derived from Wehbe v Pittwater Council [2007] NSWLEC 827 ("Wehbe v Pittwater Council"), the request then establishes that compliance is unreasonable and unnecessary as the proposed development achieves this objective notwithstanding the non-compliance, as the proposal is visually consistent with adjoining dwellings and responds to the topography of the site, achieving an appropriate transition between the higher western boundary and lower eastern boundary. The proposal will therefore not create an abrupt change in the scale of development in the streetscape. Further, consistent with the third test derived from Wehbe v Pittwater Council, the request establishes that compliance is unreasonable and unnecessary as compliance would create a development that is inconsistent with surrounding built forms, and thwart the purpose of the control. 2. Secondly, the request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the additional storey at the boundary allows the tiered and well-articulated built form to be visually similar to the built form of the adjoining properties, therefore allowing consistency with the existing two and three storey neighbourhood character and with future planning objectives for the locality. In doing so, it provides accommodation within a built form that contributes to the streetscape whilst not causing unreasonable amenity impacts to neighbouring properties. 3. Thirdly, I am satisfied, for the reasons set out in the request and based on the evidence of Mr Moratelli and Mr Shiels, that the proposed development is in the public interest because it is consistent with the objectives of the zone and the objective of the standard to "to avoid an abrupt change in the scale of development in the streetscape". I accept that the scale of development in the streetscape is for two to three storey buildings, and that the proposed development responds appropriately to the topography of the site to achieve an appropriate transition between the higher western boundary (where a three storey dwelling is located), to the lower eastern boundary (where a two storey dwelling is located). Further, I accept that the proposal is consistent with the objectives of the zone by providing for the housing needs of the community through 7 seniors living units, by proposing a built form that is compatible with the character of the surrounding neighbourhood whilst retaining the existing amenity, and by proposing a development of a height and scale that achieves the desired future character of the neighbourhood. 4. For these reasons, the state of satisfaction required by cl 4.6(4)(a) of the WLEP 2014 has been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of cl 40(4)(b) of the SEPP HSPD. Breach of the height development standard 1. As established above, the proposed development has a height of 9.5m, which is consistent with the height development standard under the WLEP 2014, but causes a breach of the development standard in cl 40(4)(a) of the SEPP HSPD for a maximum height of 8m. 2. Pursuant to cl 4.6(4)(a) of the WLEP 2014, I am satisfied that each of the elements of cl 4.6(4)(a) has been satisfied to allow a grant of development consent notwithstanding the breach of this development standard. 3. Firstly, the request establishes that compliance with the standard is unreasonable and unnecessary as, consistent with the first test derived from Wehbe v Pittwater Council, the proposal meets the objectives of the height development standard under cl 4.3 of the WLEP 2014. Insofar as they are relevant, those objectives are as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, … (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas. ... 1. The request outlines how each of these objectives is achieved by the proposal. Consistent with objective (a), the request outlines that the proposal is of a height that is consistent with the desired future character as it is reduced in height in comparison to what exists on the site and what has previously been approved, and is consistent with the height of surrounding dwellings. Consistent with objective (c), the request outlines how the shadow diagrams demonstrate minimal adverse impacts caused by overshadowing, and consistent with objective (d), the request explains that the proposal complies with the SEPP HSPD, SEPP 65 and the WDCP 2015 and therefore has minimal impact on adjoining or nearby properties. The request also outlines how objective (e) is achieved as the height is reduced from the existing building and from what has previously been approved, and that there is no public space located in close proximity that would be impacted by the height of the proposal. 2. Further, the request establishes that compliance with the standard is unreasonable and unnecessary as the underlying objectives of both the height development standard in the SEPP HSPD and the SEPP HSPD itself would be thwarted if compliance was required (consistent with the third test in Wehbe v Pittwater Council). This is because it would result in a building that is not compatible with the height, context and character of the locality and it would result in the provision of less seniors housing units. 3. Secondly, at p 4 (rather than under the heading concerning environmental planning grounds) the request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the additional height allows the proposal to be consistent with the height of buildings standard under the WLEP 2014. It establishes that compliance with the standard under the WLEP 2014 enables the proposal to be consistent with the surrounding character of the locality, and that enforcing an 8m restriction would therefore create an inconsistency in the streetscape. 4. Thirdly, I am satisfied, for the reasons set out in the request and based on the evidence of Mr Moratelli and Mr Shiels, that the proposed development is in the public interest because it is consistent with the objectives of the zone. I am also satisfied, for the reasons outlined in the request, that the objectives of the standard in the SEPP HSPD are met insofar as the proposal is consistent with both the underlying objective for the building to be compatible with the height, context and character of the locality and the objectives of the height development standard in the WLEP 2014. 5. For these reasons, the state of satisfaction required by cl 4.6(4)(a) of the WLEP 2014 has been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of cl 40(4)(a) of the SEPP HSPD. Bulk, scale and building floorplate 1. The contentions originally raised by the Council concerned the overall height of the proposed development, as well as its bulk and scale. Further, a number of the resident objectors submitted that the proposal was an overdevelopment of the site. 2. The evidence of Mr Moratelli and Mr Shiels is that, as a result of the amendments to the plans, the proposed development is in keeping with Council's desired scale and character of the street and local area, and that the floor space ratio of 0.93:1 is acceptable. I accept their opinion that the proposed building is similar in height and number of storeys to the dwelling to the west of the site at 61 New South Head Road, and that the recessive third storey will ensure consistency with the dwelling to the east at 63A New South Head Road, which is only two storeys in height. 3. The WDCP 2015, at B3.2.3, sets the minimum side setbacks for residential flat buildings, attached dwellings and multi-dwelling housing. I accept the evidence of Mr Moratelli and Mr Shiels that the proposed development complies with these side setback controls. Further, I accept their joint position that there is compliance with the requirement in cl 40(4)(c) of the SEPP HSPD that "a building located in the rear 25% area of the site must not exceed 1 storey in height." 4. The streetscape and local character controls in B3.5 of the WDCP 2015 require, at C1, that "[t]he building is consistent with the desired future character of the area set out in the precinct controls in Parts B1 and B2 of this DCP." I accept the evidence of Mr Moratelli and Mr Shiels that because the building is designed as a two storey development with a recessive third storey, and responds to the topography of the land and surrounding development, it is consistent with this control and the other controls in B3.5. 5. Whilst the Council considers that the floorplate control, contained in B3.3 of the WDCP 2015, does not apply to the proposed development, a plain reading B3.3 suggests that the control applies to any "development on land in the R2 Low Density Residential Zone" and therefore to the proposed seniors housing. Applying the floorplate control, contained at C1, would result in a maximum floorplate of 731m2. The proposal does not comply with this control, and has a floorplate of 1056m2. The evidence of Mr Moratelli is that this is only a 12% increase in the floorplate of the current building, which is 939m2, and the evidence of Mr Shiels is that it is a smaller floorplate than another proposal that has been approved for the site (which has a building with a floorplate of 1175m2). Further, I accept the evidence of Mr Moratelli and Mr Shiels that the proposed development, as designed, is consistent with the objectives of the floorplate control (in C1), which are: "O1 To ensure the bulk and scale of buildings are consistent with the desired future character of the area. O2 To ensure the size and location of buildings allow for the sharing of views and minimise impact on the privacy and sunlight access to neighbouring properties." 1. Section 4.15(3A)(b) of the EPA Act requires the Court, in exercising the functions of the consent authority, to take a flexible approach to the controls in the WDCP 2015 and allow alternative solutions for meeting the objectives of those provisions. Accordingly, although the control with respect to the maximum floorplate (C1 in B3.3) is not met, I am required to take a flexible approach and consider whether the proposal otherwise meets the objective of those controls. On the basis of the opinion of Mr Moratelli and Mr Shiels outlined above, I accept that the objectives of the control are met. 2. Therefore, on the basis of this evidence, I am satisfied that the proposed development is of appropriate height, bulk and scale. Privacy impacts 1. The evidence of Mr Moratelli and Mr Shiels is that the proposal does not present any opportunity for overlooking over the side boundaries, and that such overlooking is prevented by the setbacks, landscaping and screening devices. Mr Moratelli's evidence is that this is achieved as the windows on the side boundaries are either screened or look out to non-habitable rooms. 2. Further, the sight lines attached to the joint report demonstrate that the second floor (the recessive third storey) will be largely invisible from the rear yard of 63A New South Head Road, and will not cause any visual privacy impact. The sight lines also demonstrate that any overlooking from the balconies at the front of the site to 63A New South Head Road will be prevented through the use of privacy screens. 3. Additionally, to protect privacy to the rear, Mr Binetter has agreed to a condition requiring that "the south-facing window of bedroom 2, in Unit 7 must incorporate non-operable obscured glazing to a height of 1.5m from finished floor level." 4. I therefore accept the evidence that there will be no adverse privacy impacts caused by the proposal. This is consistent with cl 34 of the SEPP HSPD, which requires the proposed development to consider the visual and acoustic privacy of neighbours in the vicinity and residents by "appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping". Further, I accept that the design of the units so that the bedrooms are located away from the front of the site will ensure that there is "acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths", consistent with cl 34(b) of the SEPP HSPD. Overshadowing 1. The controls with respect to minimising the overshadowing of adjacent properties by new development are set out in B3.5.2 of WDCP 2015, and require the following: "C1 The development is designed so that: a) sunlight is provided to at least 50% (or 35m2 with a minimum dimension of 2.5m, whichever is the lesser) of the main ground level private open space of adjacent properties for a minimum of 2 hours between 9am and 3pm on 21 June. Where existing overshadowing is greater than this, sunlight is not further reduced; and b) north facing windows to upper level habitable rooms of adjacent dwellings receive at least 3 hours of sun between 9am and 3pm on 21 June over a portion of their surface." 1. Mr Moratelli and Mr Shiels agree, and I accept, that the shadow diagrams demonstrate that the above control is achieved by the proposed development. Design principles in the SEPP HSPD 1. As set out above, cl 33 of the SEPP HSPD requires that the proposed development be designed to: ... (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees … 1. I accept, based on the evidence of Mr Moratelli and Mr Shiels, that the proposed development maintains reasonable neighbourhood amenity by reducing bulk and overshadowing through compliant setbacks, and by a design that responds to the topography of the land and is compatible with adjacent development. Further, I consider that the proposed development is sympathetic with the existing building line and complements the existing streetscape character. It also retains major existing trees. As such, I am satisfied that the proposed development demonstrates that adequate regard has been given to these principles. Excavation 1. B3.4 of the WDCP 2015 sets out the controls with respect to excavation, which has as its objective to "minimise excavation" (at O2) and to "allow buildings to be designed and sited to relate to the topography" (at O1). Whilst the proposed excavation for the basement is greater than the maximum volume permitted by C2 of B3.4, I accept the agreement of Mr Moratelli and Mr Shiels that the excavation proposed is only to meet the requirements for car parking. Further, that excavation allows the vehicles to enter the site from the road at grade. As such, I accept that the objectives of B3.4 of the WDCP 2015 are met and that therefore the proposed volume of excavation is acceptable. Remaining concerns of the objectors 1. One of the resident objectors who gave evidence on site expressed that a seniors living development akin to a "residential flat building" or "multi-dwelling housing" should not be allowed because it is a use that is prohibited by the WLEP 2014. As set out above, whilst seniors living developments are prohibited in the WLEP 2014, the SEPP HSPD allows seniors living of any type on land zoned primarily for urban purposes, including land in the R2 Low Density Residential zone. Despite this inconsistency, the provisions of the state planning instrument introduced by the NSW government, the SEPP HSPD, prevail over the provisions of the local instrument, the WLEP 2014. Seniors housing in the form proposed is therefore permissible with development consent in the R2 Low Density Residential zone. To ensure that the occupancy of the units will be restricted to eligible persons, an agreed condition of development consent requires that a positive covenant pursuant to s 88E of the Conveyancing Act 1919 be created on the title, providing for: "Restrictions on occupation In accordance with the provisions of Clause 18 Restrictions on occupation under SEPP (Housing for Seniors or People with a Disability) 2004, the occupation of the development is limited to the following: • Seniors or people who have a disability, • People who live within the same household with seniors or people who have a disability, • Staff employed to assist in the administration of and provision of services to the residential care facility and the serviced self-care housing." 1. Another issue raised by the objectors concerned the adequacy of parking. Contrary to this concern, the evidence of Mr Moratelli and Mr Shiels is that the parking is consistent with the requirements of the WDCP 2015 and the Australian Standard for numbers, size of spaces, access and sightlines. Further, cl 50(h) of the SEPP HSPD states as follows: 50 Standards that cannot be used to refuse development consent for self-contained dwellings A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds: … (h) parking: if at least the following is provided: (i) 0.5 car spaces for each bedroom where the development application is made by a person other than a social housing provider, or (ii) 1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, a social housing provider. 1. The proposed development provides 11 car parking spaces, which meets the requirement of cl 50(h)(i). As such, cl 50 precludes the Court, in exercising the functions of the consent authority, from refusing consent on the basis of car parking. 2. A further issue raised by a resident objector asserted that there would be view loss from 61 New South Head Road occasioned by the proposed development. However, there is no evidence substantiating that asserted view loss. Further, views in this location along the southern side of New South Head Road are to the north. Therefore, I cannot accept that there would be any unreasonable view loss occasioned by the proposed development. 3. I am satisfied that the remaining matters raised by the objectors do not warrant the amendment or refusal of the application. Outcome of the appeal 1. In accordance with the above reasons, I find that the development is designed appropriately to achieve a built form that positively contributes to the streetscape and responds to the site's topography and context. I consider that it is an appropriate application of the SEPP HSPD, and that it complies with the design principles contained therein. Given that it also complies with the planning controls of the WLEP 2014 and the WDCP 2015, there is no basis to refuse the development application and it is granted accordingly subject to the conditions of consent as agreed between the parties. 2. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA 404/2017/A for the demolition of an existing dual occupancy and construction of a new seniors housing development comprising 7 self-contained units, basement level car parking and associated landscaping works is approved, subject to the conditions set out in Annexure "A". 3. The exhibits are returned, except for Exhibits B, C and 6. ………………………. Commissioner Gray Annexure A (756 KB, 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: 26 March 2019