Land and Environment Court New South Wales Medium Neutral Citation: Tolucy Pty Ltd v Northern Beaches Council [2019] NSWLEC 1284 Hearing dates: 20-22 May and 24 May 2019 Date of orders: 12 July 2019 Decision date: 21 June 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans identified in Condition 1(a) of Annexure 'A'. (2) The appeal is upheld. (3) Development consent is granted for DA 2018/1752 for a 90 bed Residential Aged Care Facility providing beds to dementia and respite care patients and 48 Serviced Self-Care Housing dwellings together with basement car parking, landscaping and ancillary works, subject to the conditions in Annexure 'A'. (4) The exhibits are returned, except for Exhibits A, LL and 7. Catchwords: DEVELOPMENT APPLICATION – site compatibility certificate – seniors housing – provisions of services – access to community services and recreation facilities – residential aged care – primary production small lots zone Legislation Cited: Aged Care Act 1997 Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy – Seniors Housing and People with a Disability 2004 State Environmental Planning Policy (Seniors Living) 2004 Warringah Local Environmental Plan 2011 Cases Cited: Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 1187 Texts Cited: Department of Infrastructure, Planning and Natural Resources, A guide for councils and applicants – Housing for seniors or people with a disability (May 2004) Quality of Care Principles 2014 Warringah Development Control Plan 2011 Category: Principal judgment Parties: Tolucy Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) A Stafford (Respondent) Solicitors: McKees Legal Solutions (Applicant) Northern Beaches Council (Respondent) File Number(s): 2018/398283 Publication restriction: No Judgment Introduction 1. This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Northern Beaches Council (the respondent) of DA 2018/1752 for demolition works and construction of a seniors housing development comprising: 1. a 94-bed residential aged care facility (RACF) and 60 self-contained dwellings (serviced self-care) spread across three separate buildings and associated landscaping works; 2. a community title subdivision of the resultant development; and 3. vehicular access to be provided from two (2) separate driveways off Cooyong Road 1. The site is located within the RU4 Primary Production Small Lots zone under the Warringah Local Environmental Plan 2011 (WLEP). 2. The dictionary annexed to the WLEP defines the proposal as consisting of a "residential care facility", and "self-contained dwelling" development, which are both found within the definition of 'seniors housing'. Development for that purpose is a prohibited use in the RU4 zone, and the applicant relies on the operation of the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 ("the SEPP HSPD"). Facts 1. The current site consists of one allotment legally described as Lot 368 in DP 752017, known as 58 Laitoki Road, Terrey Hills with a total site area of 19,536m2. The site is located on the north western corner of the intersection of Laitoki Road which forms the eastern boundary of the site, and Cooyong Road which forms the site's southern boundary. 2. The site is generally a rectangular shaped allotment, with the exception of the western boundary that is splayed in deference to the meandering alignment of Neverfail Gully Creek beyond. 3. The site slopes steeply, and unevenly, from a high point at the intersection of Laitoki Road and Cooyong Road, with an overall fall of around 28m to the western boundary adjacent to Neverfail Gully Creek. 4. Neverfail Gully Creek is identified as a waterway and Riparian Lands in the Warringah Development Control Plan 2011 (WDCP). 5. The site contains areas of the Duffy's Forest Endangered Ecological Community that is listed in Sch 2 of the Biodiversity Conservation Act 2016 as having high retention value (Ex N). 6. Both Cooyong Road and Laitoki Road are sealed roads with no line marking and a grass and gravel verge in place of a kerb and gutter. 7. The closest bus stop to the site is located on Myoora Road at Terry Hills Public School at a walking distance of around 500m-550m from the intersection of Laitoki Road and Cooyong Road. A public bus route map is shown in Exhibit L, Appendix B. 8. The Terrey Hills town centre is located on Booralie Road at a distance of around 850m to the east of the site. 9. A Site Compatibility Certificate (SCC) (Ex S, Folio 824-825) was issued by the Acting Deputy Secretary of the Department of Planning and Environment, under delegation of the Secretary, on 14 July 2017. Schedule 1 of the SCC described the use as follows: "To permit self-care dwelling, bed [sic] residential care facility, community facilities and ancillary services and basement carparking for seniors living at 58 Laitoki Road, Terrey Hills." 1. Schedule 2 of the SCC states the requirements imposed on determination in the following terms: "The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to: • access to services and facilities via appropriate pedestrian and public transport facilities; • building bulk and scale • flora and fauna issues • land slip issues • flooding • traffic; and • potential contamination" 1. The determination that is the subject of the appeal was made by the Sydney North Planning & Assessment Panel ("Panel"), and by operation of s 8.15(4) of the Environmental Planning and Assessment Act 1979 ("EPA Act"), the Council, although the Respondent in these proceedings, is subject to the control and direction of the Panel in relation to the appeal. I understand that the Panel has been notified of the proceedings and its assessment reports and recommendations are in evidence (Exhibit 2, Tab 18-21). 2. Following notification of the original development application on 26 October 2018, the Council received more than 170 submissions in response to the proposal, and a further 125 submissions were received following the notification of the amended development application on 27 April 2019. The site view and public submissions 1. At the site view, the Court heard submissions from eight residents, including two representatives who spoke on behalf of community associations in the local area, who were: * Ms Diana Pecar, of the Terrey Hills Progress Association * Ms Joanne Drewett, of the Duffy's Forest Residents Association 1. A number of public submissions related to the lack of infrastructure and services in the area, the proposal was out of character with the bushland setting, the area was an important hub for horse riding and stabling for northern Sydney, adverse impacts on traffic and on the catchment to Neverfail Gully Creek and other waterways. 2. A particular concern was expressed by a number of residents in relation to bushfire risk and the capacity for residents and their property, including animals, to evacuate the area in a bushfire emergency given that only two roads provide access from properties in the vicinity to the nearby Mona Vale Road, being Cooyong Road and Booralie Road. 3. Mr John Diamond and Ms Lesley Nalbandian, who are both residents of properties located on Cooyong Road, recalled direct experience of ember attack during bushfires, as well as other extreme weather events that had the effect of further limiting road access by the downing of trees in heavy wind. 4. A concern of the residents was that, in the event of a bushfire, the Rural Fire Service would deploy fire fighting assets to protect the RACF in order to avoid evacuation of the residents. Residents were concerned at the diversion of resources away from existing homes and resident and animal welfare. 5. During the site view, the applicant invited the architect, Ms Lara Calder of Calder Flower Architects, to speak to a large site plan prepared to assist the Court. The respondent objected to the architect's role in the site view as the applicant had not sought leave to rely on her as an expert in proceedings. As I considered the architect to be speaking as the author of the proposed development, and could quickly assist the Court to understand the general arrangement of buildings on the site, I allowed Ms Calder to briefly describe the layout of the proposal on the site. 6. The site view also included a visit to No.83 Booralie Road nearby, which the Court heard was a seniors living development that had been previously approved by the Council on the recommendation of the Sydney North Planning & Assessment Panel. 7. I was also invited to view the site from a distance, at the intersection of Cooyong Road and Kallaroo Road which rises steeply from Neverfail Gully Creek to the west, and allows an elevated view to the face of the slope on the site as it falls towards the creek. Evolution of the plans 1. The applicant filed a Class 1 appeal application with the Court on 28 December 2018, and filed a Notice of Motion of the same date seeking for the proceedings to be expedited. In the affidavit prepared by Mr Andrew Minto, for the applicant on 24 January 2019, the expedition of the matter was sought on the basis of the scheduled expiration of the SCC on 14 July 2019. 2. In accordance with the Court's directions, the respondent filed its contentions on 7 March 2019 for the purposes of the appeal against the deemed refusal of the development application. 3. On 11 April 2019, the applicant was granted leave to amend the architectural plans originally filed with the development application. The Notice of Motion states that the amendments were responsive to the respondent's contentions and comprised the following changes: * Reconfiguration of the driveway access to the development to provide a significant increase in landscaped area in the setback to Cooyong Road; * Reduction in the number of serviced self-care dwellings, otherwise known as independent living units (ILU's) from 60 to 48; * Change in the number of Residential Aged Care Facility (RACF) beds from 94 to 90; * Deletion of third storey of RACF; * Provision of greater articulation and 'gaps' between the buildings; * Amendments to ensure the proposed development complies with height requirements in the SEPP; * Increased amenity for future residents. 1. On 17 April 2019, the applicant was granted leave to amend other plans and reports filed with the original development application. 2. On 23 April 2019, the applicant was granted leave to amend the Notice of Motion filed with the Court on 17 April 2019, and 23 April 2019, and the respondent was directed to file an amended Statement of Facts and Contentions which was filed on 9 May 2019. 3. At the commencement of the hearing, the respondent submitted to the Court that the development the subject of the development application was not sufficiently defined. 4. The applicant agreed and sought, and I granted, a short adjournment to consolidate architectural plans that were drawn from previously filed plans forming part of the Notice of Motion filed on 11 April 2019, and on 23 April 2019 to form Exhibit A. 5. Following the adjournment, the applicant sought leave, that was not opposed, to rely on further amended landscape plans (Ex D), subdivision plans (Ex AA), and an amended Community Management Statement (Ex BB). 6. The applicant also sought leave to tender a statement prepared by the Architect ('Architect's Statement'), Ms Lara Calder dated 18 May 2019, that the applicant asserts was responsive to a Contention related to the height of buildings in the development application. 7. The respondent initially objected to the Architect's Statement being tendered on the grounds that the applicant had not sought leave for the architect to appear as an expert witness, or to joint conference with other experts, and that the Architects Statement was a means of now relying on the Architect as an expert 'by stealth'. 8. I allowed the Architect's Statement to be entered in to exhibits as Exhibit CC, and at the respondent's suggestion, the applicant's architect conferred with the respondent's urban design expert, architect Ms Lea Lennon, and the respondent's planner, Ms Lashta Haidari, with the intent of reviewing the CAD program used by Ms Calder to derive the geometry of the height plane shown in the amended plans. 9. As a result of the conference, the experts prepared a supplementary joint report appended to new drawings prepared for that purpose (Ex FF). Drawings DA A2010 and DA A2011 show amendments to a corridor on what is described as Level 09, in the building closest to Laitoki Road, which the experts agreed resolved some issues in dispute. The applicant later confirmed the scope of these amendments in a letter prepared by the architect (Ex NN). As a result the contention related to height and the number of storeys was no longer pressed by Council. 10. During the hearing, Mr Robertson for the applicant, acknowledged that the plans had evolved, and were continuing to do so. 11. At the commencement of day 3 of the hearing, I was advised by the applicant that a further amendment to the application was sought following reference by the applicant to cl 21 of the SEPP in relation to the proposal to subdivide the site. As stated at [1(2)], the original application before the Court proposed to subdivide the site into four allotments so as to facilitate the development of a residential care facility, and ILU's under strata title. 12. The subdivision as initially proposed was described in Ex AA to consist of: * Lot 1 – comprising the internal roads on the site defined as Community Property with a total of 1,859m2 * Lot 2 – comprising a lot with frontage to Neverfail Gully Creek with a total area of 6739m2 * Lot 3 – comprising a central lot defining both common property and strata title with a total area of 7025m2 * Lot 4 - comprising a lot with frontage to Laitoki Road defining both common property and strata title 1. However, for the reasons set out in [37], the applicant now seeks to develop the RACF and ILU's on a single allotment, and no longer seeks consent for further subdivision of the ILU's to strata title. 2. As a consequence of this amendment, the applicant then submitted proposed draft conditions of consent (Ex OO). Condition (1)(i) provides that the RACF be a high care facility that caters exclusively to those with dementia who are expected to have a severe or profound disability, and respite care. 3. In closing submissions, Mr Robertson for the applicant sought, unopposed, and was granted leave to rely on a further amended set of plans (Ex LL) which was accompanied by a description of the development (Ex MM) which is the subject of the development application in the following terms: "The proposal seeks approval for the demolition of the site's existing structures, followed by the construction of a development pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 comprising of a 90 bed Residential Aged Care Facility providing beds to dementia and respite care patients and 48 Serviced Self-Care Housing dwellings together with basement carparking, landscaping and ancillary works" Statutory framework 1. Seniors housing, including a seniors living development comprising RACF and ILU's as is proposed by the applicant, is not a land use identified under WLEP as permissible, with or without consent, within the RU4 Primary Production Small Lots zone, and consequently it is a prohibited form of development within the zone. 2. The RU4 zone objectives are in the following terms: 1 Objectives of zone • To enable sustainable primary industry and other compatible land uses. • To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To minimise the impact of development on long distance views of the area and on views to and from adjacent national parks and bushland. • To maintain and enhance the natural landscape including landform and vegetation. • To ensure low intensity of land use other than land uses that are primary industry enterprises. • To maintain the rural and scenic character of the land. 1. The parties agree that the effect of the SCC is to displace the prohibition on a seniors housing development and for consent to be granted if the development application complies with the relevant provisions of the WLEP. 2. However, while the SCC permits the development with consent, cl 25 (10)(b) of the SEPP HSPD makes clear that the operation of the SCC does not affect the zoning of the land to which it relates under another environmental planning instrument 3. While there is no dispute as to the efficacy of the SCC, cl 24 of the SEPP HSPD relevantly provides: 24 Site compatibility certificates required for certain development applications (1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) if: (a) the development is proposed to be carried out on any of the following land to which this Policy applies: (i) land that adjoins land zoned primarily for urban purposes, (ii) land that is within a zone that is identified as "special uses" under another environmental planning instrument (other than land on which development for the purposes of hospitals is permitted), (iii) land that is used for the purposes of an existing registered club, or … (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the relevant panel has certified in a current site compatibility certificate that, in the relevant panel's opinion: (a) the site of the proposed development is suitable for more intensive development, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25 (5) (b). Note. Clause 50 (2A) of the Environmental Planning and Assessment Regulation 2000 requires a development application to which this clause applies to be accompanied by a site compatibility certificate. (3) Nothing in this clause: (a) prevents a consent authority from: (i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or (ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or (b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies. … 1. Residential care facilities and serviced self-care housing are both within the definition found at cl 10 of the SEPP HSPD as 'Seniors housing'. The notes that appears in cl 10 also refers to a concept within the definition as follows: "The concept of seniors housing is intended to be a shorthand phrase encompassing both housing for seniors and for people with a disability. This Policy deals with both kinds of housing. Accommodation provided by seniors housing does not have to be limited to seniors or people with a disability. Clause 18 provides that seniors housing may be used for the accommodation of the following: (a) seniors or people who have a disability, (b) people who live within the same household with seniors or people who have a disability, (c) staff employed to assist in the administration of and provision of services to housing provided under this Policy." 1. The aims of the SEPP HSPD are set out in cl 2 as follows: (1) This Policy aims 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. (2) These aims will 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. Development for seniors housing is addressed in Ch 3 of the SEPP HSPD and contains all of the clauses prescribing development standards. The objectives of the chapter are found at cl 14; "The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age." 1. Clause 15 of the SEPP is within Chapter 3 and describes the function of the chapter 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. Clause 16 of SEPP relevantly provides: 16 Development consent required Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent. 1. A consent authority must not consent to a development application made under SEPP HSPD unless the consent authority is satisfied that residents of the proposal will have access to certain facilities and services, at cl 26 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), or … Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be 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. (4) For the purposes of subclause (2): (a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause: bank service provider means any bank, credit union or building society or any post office that provides banking services. 1. As stated at [2], the site is located in the RU4 zone within the WLEP. The site's eastern boundary along Laitoki Road adjoins the R2 Low Density Residential zone and so, in accordance with subcl 4(4) of the WLEP, the land may be defined as follows: (4) Land that adjoins land zoned primarily for urban purposes For the purposes of this Policy, land that adjoins land that is zoned primarily for urban purposes includes (but is not limited to) land that would directly adjoin land that is zoned primarily for urban purposes but for the presence of a public road to which there is direct vehicular and pedestrian access from the adjoining land. 1. Part 5 of the SEPP HSPD contains development standards found in cll 42, 43 and 44 related to serviced self-care housing development on land adjoining land zoned primarily for urban purposes as follows: 1. Clause 42 is in the following terms: 42 Serviced self-care housing (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned 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. (2) For the purposes of subclause (1), residents of a proposed development do not have reasonable access to the services referred to in subclause (1) if those services will be limited to services provided to residents under Government provided or funded community based care programs (such as the Home and Community Care Program administered by the Commonwealth and the State and the Community Aged Care and Extended Aged Care at Home programs administered by the Commonwealth). 1. Clause 43 is in the following terms 43 Transport services to local centres (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that a bus capable of carrying at least 10 passengers will be provided to the residents of the proposed development: (a) that will drop off and pick up passengers at a local centre that provides residents with access to the following: (i) shops, bank service providers and other retail and commercial services that residents may reasonably require, (ii) community services and recreation facilities, (iii) the practice of a general medical practitioner, and (b) that is available both to and from the proposed development to any such local centre at least once between 8am and 12pm each day and at least once between 12pm and 6pm each day. (2) Subclause (1) does not apply to a development application to carry out development for the purposes of the accommodation of people with dementia. (3) In this clause, bank service provider has the same meaning as in clause 26. 1. Clause 44 provides that the services be available in a timely manner upon completion of the housing intended for residents: 44 Availability of facilities and services A consent authority must be satisfied that any facility or service provided as a part of a proposed development to be carried out on land that adjoins land zoned primarily for urban purposes will be available to residents when the housing is ready for occupation. In the case of a staged development, the facilities or services may be provided proportionately according to the number of residents in each stage. Expert evidence 1. To assist the Court, the following experts were retained by the parties: Applicant Respondent Andrew Minto, Town Planning Lashat Haidari, Town Planning Paul Walter, Urban design Lea Lennon, Urban design Robert Smart, Landscape Anthony Powe, Landscape Dr Judith Stubbs, Social planning The issues 1. The Council's contentions can be summarised as follows: * The proposal does not adequately demonstrate that the future residents of the proposal will have access to the services and facilities required by cl 26 of the SEPP; * The proposal does not adequately demonstrate that residents of the serviced self-care housing component of the proposed development will have reasonable access to home delivered meals, personal care and home nursing, and assistance with housework as required by cl 42 of the SEPP, or that a bus service will be provided to the residents as required by cl 43 of the SEPP; * The proposal does not demonstrate that the site is appropriate for the type of development with regard to residents' safety in the event of bush fire; * The proposal has a built form that is excessive and unreasonable, is poorly configured, is not of good design, and is not compatible with the existing character of the area. 1. The provisions of the SEPP HSPD include a number of jurisdictional preconditions that must be satisfied in order to enliven the Court's power to grant consent. Consequently, before considering the merits contentions in this appeal, I must first consider whether the development application satisfies the preconditions with respect to SEPP HSPD. 2. Firstly I am asked to consider whether cl 26 of the SEPP HSPD, or cl 43 are applicable to the proposal, or whether, as the respondent submits, both cl 26 and cl 43 apply to the site. 3. If I do not find that cl 43 wholly displaces the operation of cl 26, I am next asked to consider, to what extent cl 26 applies to the development, and whether it acts as a prohibition on the site, or whether it is a development standard. 4. If I consider that cl 26 is a development standard, I am then asked to find whether it is amenable to variation by a written request under cl 4.6 of the WLEP and, if so, I am asked to form an opinion of satisfaction as to whether the written request adequately addresses the issues in cl 4.6 of the WLEP. 5. Any further consideration of the merits of the proposal then rest upon the findings that result from the steps outlined above. Application of the SEPP HSPD 1. As the parties dispute the application of certain provisions contained in the SEPP HSPD to the two facilities proposed on the site, and given the evolution of the development application through the course of the hearing, it is useful at this point to again restate the arrangement of the proposal on the site so as to understand the development the subject of the development application before the Court, and to identify the relevant statutory framework that should apply to the contentions. 2. The proposed development consists of: 1. A 90-bed Residential Aged Care Facility (RACF) located on the western portion of the site which is at a lower contour, overlooking the Neverfail Gully Creek on an elevated level formed by retained site fill, given the proximity to the riparian zone, and above the flood level of the creek. 2. A serviced self-care housing development, with 48 Independent Living Units (ILU) contained in two buildings of 2-storeys each is proposed on the steeply rising land to the east of the site, with one building having a primary frontage to Cooyong Road, and the other primarily fronting Laitoki Road. 3. Associated civil and landscape works, including regeneration of the Duffy's Forest Endangered Ecological Community (EEC) in the Riparian zone 1. The parties dispute the relevance and application of cll 26 and 43 of the SEPP HSPD which, in essence, deals with the location and access of facilities to certain kinds of seniors housing development. The Applicant's position on the SEPP 1. The applicant's position is set out in its written submissions dated 22 May 2019, and 23 May 2019 and which were also addressed orally. In essence, the submission is that the underlying objectives of the SEPP HSPD, and particularly the requirement for residents of the development to have reasonable access to certain services described in the SEPP HSPD are achieved by co-locating the RACF and the ILU's development. 2. The applicant submits that the very nature of the RACF, being a facility under an Australian government regulatory regime will ensure the provision of services on the site. In support of this argument, the applicant brought to my attention in submissions the Quality of Care Principles 2014 which impose standards on the provision of care that would appear to be identical to those services found in both cll 26 and 43 of the SEPP HSPD. 3. The advantage of this arrangement, according to the applicant, is that the standards imposed on the operator of the RACF by the Australian government will ensure that at all times there are services of a sort to which residents of the proposed ILU's development are required to have reasonable access, including home delivered meals; personal care and home nursing; and assistance with housework. 4. The applicant cites s 41-3 of the Aged Care Act 1997 which defines residential care as comprising services that must be provided by an operator of a RACF and which are the same as those contained in cl 42 of the SEPP HSPD, namely: 41‑3 Meaning of residential care (1) Residential care is personal care or nursing care, or both personal care and nursing care, that: (a) is provided to a person in a residential facility in which the person is also provided with accommodation that includes: (i) appropriate staffing to meet the nursing and personal care needs of the person; and (ii) meals and cleaning services; and (iii) furnishings, furniture and equipment for the provision of that care and accommodation; and … 1. Not only can the Court be satisfied that the services will be provided in order to obtain, and maintain the accreditation necessary to operate as a residential aged care facility under the Aged Care Act, but the applicant also notes the commercial interests associated with ensuring the continuation of government subsidies for the operation of RACF will ensure services are maintained. 2. The combination of a RACF and ILU's development on the same site is anticipated in the SEPP HSPD by the operation of cl 17 (2) which states: A Consent authority must not grant consent to a development application made pursuant to this chapter to carry out development for the purposes of serviced self-care housing on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied that the housing will be provided: … (b) in combination with a residential care facility, or … 1. The applicant's primary position is that the facilities required by cl 26 (1)(a)-(c) are provided on site by the development as shown in the architectural plans relating to the RACF, and so, satisfy the relevant provisions because as the facilities are being provided on the site, they cannot be said to be more than 400m from the site. 2. Further, as the RACF is identified in evidence as being only for people with dementia and for respite care, it is, according to the applicant, indeed preferable for services to be provided on site so as to avoid providing any incentive for people with cognitive impairment or other disability to venture beyond the safety of the site, and into an environment where risk to their wellbeing may lie. 3. In support of the applicant's primary position, Dr Stubbs explained to the Court that admission to a RACF is generally requisite on an assessment undertaken by an Aged Care Assessment Team (ACAT). The practical effect of this ACAT assessment is, when considered alongside the common preference for someone to delay admission to a RACF for as long as possible, that once residents are admitted to a RACF, it is because they have been assessed as having 'high care needs' and so are limited in their mobility or cognition. 4. To satisfy the requirements of cl 43 of the SEPP HSPD, the applicant proposed that two, 12-seater mini-buses would be provided with the development that would drop off and pick up passengers at the Terrey Hills local centre. 5. The applicant accepts that the Court must be satisfied that services, including transport services, will be available to residents when the housing is ready for occupation as required by cl 44 of the SEPP HSPD. To this end, the applicant proposes conditions of consent (Ex OO) which provide, in summary: 1. Two mini buses, with a capacity of 12 seats, having wheelchair access and staffed by a driver and an appropriately qualified assistant/helper will be provided for the life of the development; 2. The buses will pick up and drop off residents of the development in accordance with the times of the day as found in cl 42 (1)(b), and otherwise operate 'on-demand' between the hours of 8am – 6pm; 3. The costs of providing and operating the mini buses will be borne by the owner of the land; 4. Prior to occupation, and for the duration of the development, residents of the ILU's must have reasonable access to meals, cleaning and personal care services and nursing care provided by the operator of the RACF or, in default, by the owner of the land; 5. That the café located in the RACF must, at a minimum, stock and sell newspapers, snacks and personal needs such as basic toiletries; 6. The RACF must have an ATM operating prior to the issue of the Occupation Certificate; 7. A public positive covenant must be created on the title of the land incorporating the measures outlined above, prepared at the applicant's expense and endorsed by the Council prior to lodgement with NSW Land Registry Services. 1. The applicant submits that cl 43 of the SEPP HSPD displaces the operation of cl 26 on the site as held by Cowdry J in Information Gateways Pty Ltd v Hornsby Shire Council [2005] NSWLEC 242 ('Information Gateways'). 2. In the alternative, the applicant submits that cl 26 is a development standard, and not a prohibition, as found by Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153. To this end, the applicant submits a written request pursuant to cl 4.6 of the WLEP to contravene the provisions of cl 26 and which is considered at [104]-[132]. The Council's position on the SEPP 1. The respondent's primary position is found in written submissions that are undated, but which were handed up prior to closing submissions and are to the effect that the applicant's failure to comply with the access requirements of cl 26(2) is fatal to the application because the proposal, being on land adjoining urban land, must meet the requirements of both cll 26 and 43 of SEPP HSPD. 2. The respondent submits that it is not reasonable to depart from cl 26, as it applies to all types of seniors housing development, including serviced self-care housing, and that cll 42– 44 should be considered an additional suite of services that are 'over and above' the provisions of cl 26. 3. To selectively apply the provisions of cl 43 alone, and at the expense of the provisions contained in cl 26 deprives the residents, carers and others of the services intended by the SEPP HSPD which caters to a range of people, including those who are seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age. Simply put, a bus service does not achieve the same level of free movement and social connection as an accessible walking path of not more than 400m from services and facilities. 4. Furthermore, the respondent notes the applicant makes no attempt to provide retail and commercial services that residents may reasonably require, in accordance with cl 26(1)(a) such as clothing and other personal needs. 5. However, given the steep terrain in the immediate vicinity of the site, the respondent maintains that the accessible path as defined by subcl 26 (2) is not possible to achieve, and so the site cannot be said to satisfy the requirements of the SEPP HSPD in relation to location and access to facilities. 6. Further, the respondent notes that cl 26 and cl 42 are in identical terms and requires that the Court, exercising the functions of the consent authority on appeal, must be satisfied, by written evidence, that residents of the proposed development will have access to services and facilities (emphasis added). 7. In support of this position, the respondent cites Preston CJ in Crighton Properties Pty Ltd v Kiama Municipal Council [2006] NSWLEC 297 (Crighton), and more recently, Commissioner O'Neill in Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 1187 as evidence that an applicant cannot rely on an assurance that arrangements have been made for the provision of access to services for residents, but that satisfactory written evidence must be found in the development application and accompanying documents in order to reach the required state of satisfaction that residents will have access to relevant services. 8. To this end, it is not sufficient for the applicant to simply 'copy and paste' the provisions of the SEPP HSPD in to the conditions of consent in the hope of passing the obligation to a future owner or operator of the development, and the Court should not be satisfied on the basis of the written evidence provided. Findings 1. The applicant submits that cl 43 imposes a development standard on the land, being land adjoining land zoned primarily for urban purposes, and states the following at [2] of the applicants written submission dated 22 May 2019: "Clause 43 imposes a development standard solely for:- a. serviced self-care housing; and b. on land adjoining land zoned primarily for urban purposes" 1. Whether it is intended or not, the applicant's inclusion of the word 'and' appears a creation of the applicant's own submission and is not found in the text of cl 43 of the SEPP HSPD. In the absence of the word 'and', the clause appears more narrowly applicable to serviced self-care housing on land adjoining land zoned primarily for urban purposes and not, as is suggested in the applicant's written submission, to apply to both serviced self-care housing, and to land adjoining land zoned primarily for urban purposes. 2. The relevance of defining the site as land adjoining land that is zoned primarily for urban purposes in this way is found in the note contained in cl 26 which states that: Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes (emphasis added). These provisions include provisions relating to transport services. 1. The applicant relies on Cowdroy J in Information Gateways to suggest that, as in the State Environmental Planning Policy (Seniors Living) 2004, the operation of cl 43 in SEPP HSPD displaces cl 26. I understand Cowdroy J to hold at [34] that cl 26 is only displaced in specific terms: "Clause 75 [cl 43] is clearly intended to operate in those circumstances where the development is located further distant than 400 m from the nominated facilities. As such, cl 75 [cl 43] operates to exclude cl 25 [cl 26] in relation to those developments referred to in cl 75 [cl 43]" (emphasis added) 1. That is, in relation to serviced self-care housing located on land adjoining land primarily zoned for urban purposes. And earlier, at [33], Cowdroy J states: "Both cll 25 and 75 are mandatory, but while cl 25 is a general provision relating to development for seniors housing, cl 75 pertains solely to development of serviced self-contained housing on land which adjoins lands zoned primarily for urban purposes." 1. It is also relevant, in my view, that the development the subject of the development application before Cowdroy J in Information Gateways comprised 83 single-storey serviced self-care dwellings under the SEPP Seniors Living, and did not consist of a further development, as in this case, of a RACF. 2. For the reasons stated above, I consider cl 43 applies specifically to the serviced self-care housing that forms a part of the development that is the subject of the development application. 3. In finding this to be the case, the respondent's position is that the Court cannot be satisfied, by written evidence, that residents of the proposed development will have reasonable access to home delivered meals, personal care and home nursing, and assistance with housework (cl 42) or that those services will be available to residents when the housing is ready for occupation (cl 44). 4. The applicant initially relied upon a letter from BaptistCare NSW & ACT as written evidence (Ex EE) that residents of the proposed ILU's development will have reasonable access to services required by cl 42. While it is doubtful that a letter indicating an expression of interest would rise to the standard set out by Preston CJ in Crighton, it is not necessary for me to determine this as the applicant subsequently amended the application, with effect on the means by which residents are likely to access services. 5. I consider it relevant that the application was amended to withdraw a proposed subdivision so that the site is to remain a single allotment. The practical effect of this amendment on the provision of services and facilities is that the ILU's and the RACF are likely to be under a single ownership, and a single operator model. 6. In my view, the applicant's proposed draft conditions of consent, including that a public positive covenant to be registered prior to the issue of any occupation certificate and to the satisfaction of the Council, is written evidence in sufficient detail to satisfy the Court that residents of the proposed development will have reasonable access to the services required by cl 42, and at the time required by cl 44. 7. Furthermore, I consider the provision of the bus to have been meaningfully integrated in to the development, and not merely proposed by way of condition. A swept path analysis for a 25-seater minibus, of 7.73m in length, is contained in Appendix C of Exhibit L, and the architectural plans identify a sheltered bus stop in a lay-by that allows vehicular access, including ambulance and waste vehicles to access the site unobstructed. 8. As stated in [92], cl 43 can be said to apply to the serviced, self-care housing proposed as part of the development application. It follows that the provisions of cl 26 apply to the portion of the development that is not serviced self-care housing, which consists of the RACF. 9. Clause 26(2) requires that seniors housing of a type that is a RACF should be located such that facilities and services are located at a distance of not more than 400m from the site of the proposed development by means of a suitable access pathway with an overall average gradient of no more than 1:14. 10. The applicant has provided a written request pursuant to cl 4.6 of the WLEP in relation to the RACF. Before I consider this, I must deal with whether the provisions of cl 26 within Chapter 3 of the SEPP HSPD are amenable to variation under cl 4.6 of the WLEP. 11. For the reasons held by Robson J in Principal Healthcare, and more recently articulated by Senior Commissioner Dixon in Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205 at [159]-[165], I am satisfied that cl 26 operates as a development standard. 12. This is relevant in considering the written request prepared by Mr Andrew Minto on behalf of the applicant and which seeks to contravene the development standard found in cl 26. Written request to vary development standard 1. The applicant's written request, made pursuant to cl 4.6 of the WLEP, seeks to contravene the provisions of cl 26 of the SEPP HSPD, already reproduced at [52] as it relates to the RACF. 2. The written request was prepared by Mr Andrew Minto dated 19 May 2019, was amended during proceedings and was entered as Exhibit JJ. 3. Clause 4.6 of the WLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 26 of the SEPP HSPD, but that power is subject to conditions. 4. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 18 ("Initial Action"), for the Court to have the 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: 1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), 3. 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 4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)) 1. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that: 1. the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and; 2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. 1. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Land and Environment Court Act (LEC Act) but should still consider the matters in cl 4.6(5) of the KLEP (Initial Action at [29]). 2. Clause 4.6 of the KLEP is in the following terms: 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. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. The written request acknowledges that the development does not comply with cl 26(2)(b) because the site is located approximately 500m to 550m to the nearest bus stops. 2. It also states that it relies on information contained in reports prepared by Dr Judith Stubbs for the applicant and dated 3 May 2019 and 14 May 2019. 3. In support of the proposal, the written request states that, for the following reasons, compliance with the development standard found in cl 26 (2)(b) would be unreasonable or unnecessary for the RACF because: 1. 95% of the residents are likely to have a severe or profound disability and that relatively few of them would be able to walk any distance even within the facility unaided, and 2. None of the residents would be able to access a public bus safely and independently, even if it was immediately outside the door of the RACF, and 3. It would be highly undesirable, and may be dangerous, for people with dementia to independently access public transport or services, and 4. All of the resident's daily needs will be provided on site, including food, medicine, clothes, sleepwear, toiletries, hairdresser and the services of a medical practitioner 5. Services such as a bank are best accessed with assistance from a mobile banking service or the like 1. While the written request does not refer to the commonly applied tests set out in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] ("Wehbe") to justify the contravention of the development standard, the Applicant appears to rely on the first most commonly applied test in Wehbe, which is that the underlying objective or purpose of the development standard is met notwithstanding the contravention of the standard by providing the services and facilities on the site. 2. Furthermore, that compliance would be unreasonable or unnecessary because residents of the RACF will likely have a severely or profound disability and be unlikely to use a public bus if it were available, and that access to the services and facilities required by the development standard are provided in any event on the site and/or by the private mini-buses. 3. I accept that the architectural plans clearly show spaces close to the entry of the RACF that are labelled for the purpose of the services identified in cl 26(1) including a café, physio/gym, hairdresser, and a consultation room. Furthermore, these spaces are clearly positioned in proximity to a suitable access pathway that traverses the site, from the RACF in the west, to the ILU's in the east that complies with cl 26(2), and as further defined in cl 26 (4). 4. For that reason, I am satisfied as required by cl 4.6(4)(a)(i) that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3)(a) by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the underlying objective or purpose of the development standard is met notwithstanding the contravention the standard by providing the services and facilities on the site. 5. Next, the written request addresses the environmental planning grounds on which the proposed development seeks to justify contravention of the development standard. 6. The environmental planning grounds relied upon must be sufficient to justify a contravention of the development standard with a focus on the aspect of the development that contravenes the development standard, not the development as a whole. Accordingly, the environmental planning grounds found in the written request must be adequate to justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). 7. The written request relies on the following environmental planning grounds to justify contravening the development standard: 1. The applicant submits that all services reasonably required by residents will be provided on site, and that any access to additional services and facilities can be accessed by using the private buses proposed. 2. That no external impacts on surrounding properties or public infrastructure will result from the non-compliance, including no additional demands on the local public bus services because of the private buses proposed. 3. With reference to the particular locality, there are no other locations within 400m of a bus stop that would be suitable for a RACF development of a similar size as that proposed. 4. The applicant cites a number of the objects of the EPA Act, found at cl 1.3, to address what are regarded as the sufficient environmental planning grounds by reference to objects (a), (b), (c), (e), (g), (h). 1. I am satisfied that the written request has adequately addressed the aspect of the development that contravenes the development standard on environmental planning grounds. In particular, I accept that providing services and facilities on the site is likely to alleviate, if not wholly remove, external impacts on surrounding properties and public infrastructure by ensuring that the particular needs of residents with severe or profound disability are met without the need to leave the care found in the RACF and its grounds. 2. In arriving at this state of satisfaction, I also consider the design of the proposed landscaping has the potential to provide an environment in which families and loved ones can spend time with residents of the RACF, and in so doing, mitigate the isolation that could otherwise result from a RACF dedicated to those with dementia, disability or requiring respite. 3. In relation to the second opinion of satisfaction at cl 4.6 (4)(a)(ii), I am required to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives in the particular standards, and the objectives of the zone. 4. The written request states that, in the absence of an objective in the SEPP HSPD for cl 26, the underlying objectives of the particular standard may be said to be "to ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonably require". 5. In addition to relying on the services and facilities being provided on site as set out in [75], the applicant also relies on surveys and research from Dr Stubbs (Ex 3) which identifies an unmet need in the area for dementia and respite accommodation. According to Dr Stubbs, at page 6 of her report dated 3 May 2019, this is evidenced by high occupancy rates in local facilities of up to 98%, and between 2 and 35 people awaiting a placement in the area. 6. I am satisfied, based on the written request, and evidence received during the hearing, that the proposed development will be consistent with the underlying objectives of the development standard, as described at [123] because: 1. The development itself includes an accessible path for residents to traverse a steeply sloping site by means of paths, ramps and elevators which will provide opportunities for both rest and social interaction. 2. A sectional drawing located at the top of architectural drawings DA 004 to DA 013 (Ex LL) illustrates the general pattern of pedestrian movement intended to be facilitated along the site in an east/west direction. The relevance of this is that the development is connected by an accessible pathway through the site, and between buildings and across internal roads, through a combination of levels, ramps, and elevators in an otherwise steeply sloping terrain. 3. The development is to be serviced by two mini-buses that can carry 12 passengers each, and be equipped with access for those with a disability. I am not persuaded by the respondent's submission that the Court must be in possession of evidence on the precise manufacturer or model of the bus in order to be satisfied that a regular bus services will be provided to the residents, but instead I acknowledge the common availability of mini-buses fitting this description. 4. The architectural plans show bus parking and a pick up location served by a sheltered bus stop onsite on the western driveway primarily servicing the RACF, which demonstrates that provision is made for the mini-buses on site. 1. The written request also seeks to address the public interest in the proposed development because it is consistent with a number of the objectives of the RU4 Primary Production Small Lots zone, and is in a manner may be summarised as follows: 1. To enable sustainable primary industry and other compatible land uses: * The proposed development is compatible with other land uses evident in the RU4 zone, and particularly given the location of the site at the interface of the RU4 zone with the R2 Low Density Residential zone on Laitoki Road; and * With regard to similarly scaled development at No.83 Booralie Road that is in close proximity to the site, and located within the RU4 zone, and other non-primary industry developments in the Terrey Hills/Duffy's Forest RU4 zone including a number of schools. 1. To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature: * Not relevant, according to the applicant's written request, although some local employment is likely to result from the proposed development upon completion. 1. To minimise conflict between land uses within this zone and land uses within adjoining zones: * The applicant considers that as the proposed development is a low intensity residential development set in an extensive landscape buffer, with substantial separation distances between the site and adjoining R2 Low Density Residential zone, the proposal will act as a buffer between the R2 Low Density Residential zone. 1. To minimise the impact of development on long distance views of the area and on views to and from adjacent national parks and bushland: * The written request notes that the proposed development steps down the site in a way that is consistent with the fall of the land and with a building form that seeks to be consistent with a rural environment by clustering building forms, retaining and replenishing trees on the site. 1. To maintain and enhance the natural landscape including landform and vegetation: * The written request identifies the proposed works to enhance the Neverfail Gully Creek environs, and the extensive landscaping proposed to the perimeter of the site 1. To ensure low intensity of land uses other than land uses that are primary industry enterprises: * As the proposed RACF provides accommodation for seniors, the written request asserts that the proposed development is not expected to result in unreasonable noise, traffic or other environmental intensity, and that the residents of the facility are likely to be restricted to the site itself 1. To maintain the rural and scenic character of the land * Extensive landscape treatment will result in development that enhances the rural and scenic character of the land. 1. In oral submissions on the matter of the written request, Mr Robertson for the applicant, advises there is no dispute that a residential care facility is prohibited in the zone under the WLEP, and so the Court should not be surprised if the objectives of the zone fail to accommodate development that would be prohibited but for the effect of the SEPP HSPD. 2. However, I am satisfied that the applicant's written request has adequately addressed the degree of consistency of the proposed development with the objectives of the zone. In arriving at that opinion of satisfaction, I have considered: 1. That while the site adjoins the R2 Low Density Residential zone which is located on Laitoki Road, and therefore is adjacent to the ILU's, the location of the RACF is in the more rural setting adjoining Neverfail Gully Creek, and horse-related activities. 2. Due to the extensive landscape treatment proposed, and the substantial setbacks shown on the plans to Cooyong Road, and the regeneration of the Duffy's Forest EEC, I am of the view that the proposed development has the potential to not only maintain, but also enhance the rural and scenic character of the land, and the wider area 3. The diversity of uses permitted in the zone, which include veterinary hospitals, landscape materials and rural supplies, dairies and respite day care centres, could be expected to be of a similar scale to the proposed RACF development, without the level of articulation, modulation, landscaping or material palette that is proposed 1. Taken together, I am satisfied that the written request has adequately addressed the matters required by cl 4.6 of the WLEP. Consequently, in my view, cl 4.6(4) (a)(ii) is satisfied. 2. The concurrence of the Secretary has not been obtained in this matter. Nonetheless, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of the WLEP (Initial Action at [29]). 3. I also have considered the matters in subcl 4.6 (5)(a), (b) and (c) including whether any matter of significance for State or regional environmental planning is raised and the public benefit of maintaining the standard, and have decided that in the circumstances of this case, for the reasons outlined above, that the standard can be contravened as there is no apparent public benefit maintaining strict compliance with the standard in the circumstances of this case. 4. For those reasons the applicant's written request made pursuant to cl 4.6 of the WLEP to contravene cl 26 of the SEPP is approved. Bushfire 1. The parties agree that the site is not on land identified on a bush fire prone land map, however, enclosed in the applicant's Statement of Environmental Effects (Ex P) is an excerpt of a map showing the proximity of Bushfire prone land that the respondent considers is in the order of 120m-150m from the site. 2. The respondent submits that the proximity of the proposed development to bushfire prone land, and the evidence of direct experience of residents with bushfires in the past, is sufficient cause for the Court to have regard to the provisions of cl 27 (2) of the SEPP HSPD which requires that: (2) A consent authority, in determining a development application made pursuant to this Chapter to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 10.3 of the Act as "Bush fire prone land—vegetation category 1", "Bush fire prone land—vegetation category 2" or "Bush fire prone land—vegetation buffer", must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following: (a) the size of the existing population within the locality, (b) age groups within that population and the number of persons within those age groups, (c) the number of hospitals and other facilities providing care to the residents of the facilities within the locality, and the number of beds within those hospitals and facilities, (d) the number of schools within the locality and the number of students at those schools, (e) existing development within the locality that has been carried out under this Policy or State Environmental Planning Policy No 5—Housing for Older People or People with a Disability, (f) the road network within the locality and the capacity of the road network to cater for traffic to and from existing development if there were a need to evacuate persons from the locality in the event of a bush fire, (g) the adequacy of access to and from the site of the proposed development for emergency response vehicles, (h) the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, (i) the requirements of New South Wales Fire Brigades. 1. The contentions state that the applicant has failed to demonstrate that adequate access has been allowed for fire fighting vehicles. Furthermore, the respondent is of the strong view that as the applicant's submission relies on the fact that residents of the RACF will have a severe or profound disability, it is even more important that the risk of bushfire, and emergency planning for evacuation of vulnerable residents, is considered. 2. In response to the contentions, the applicant prepared a statement, including a number of annexures, seeking to address the provisions of cl 27 (2) (Ex DD), and enclosing: 1. Social planning report, prepared by Dr Judith Stubbs in relation to cl 27 of the SEPP HSPD, dated 17 May 2019; 2. Written advice from Transport & Traffic Planning Associates, dated 17 May 2019; 3. Written advice from Building Code & Bushfire Hazard Solutions, dated 16 May 2019; and 4. Letter and email correspondence from Rural Fire Service NSW, dated 15 May 2019. 1. The respondent advised the Court that, in the short time available, it had been unable to engage an expert to review the written advice prepared for the applicant by Building Code & Bushfire Hazard Solutions and so would rely on the public submissions made during the on site view. 2. I note that the advice from Building Code & Bushfire Hazard Solutions refers to, and relies on, the letter from the Rural Fire Service, and advises that, in its own opinion, access and egress via public roads for use by emergency response vehicles is suitable. 3. The Rural Fire Service (RFS) proposes a condition of consent that is, to the effect, that an emergency evacuation plan should be prepared in accordance with its own guidelines and Australian Standard AS 3745-2010. 4. The applicant also proposes a condition of consent in Exhibit OO that it considers appropriate and responsive to public submissions. Condition 1(l) provides as follows: "In order to provide a safe refuge for future residents in the event of a bushfire, the Residential Aged Care Facility is to be constructed to a BAL 12.5 standard. Details of the proposed construction are to be included on the Construction Certificate Plans." 1. According to the applicant, the advice contained in Exhibit DD should satisfy the Court that there is sufficient emergency access to the main roadway of Mona Vale Road in the case of evacuation, and that a BAL rating of 12.5 for the RACF is adequate to protect against ember attack. 2. Furthermore, in oral submissions the applicant considers a BAL rating of 12.5 would make the RACF less likely to be evacuated and it would be a safer place for others within the development to move to in the event of a bushfire risk. 3. Clause 27 (2) does not expressly prohibit the grant of consent, but rather states that the Court must take into consideration a range of factors that are, to some extent, addressed in Exhibit DD. 4. In the event that the Court considered granting consent, the respondent supports the applicant's proposed condition of consent to fix a BAL rating of 12.5 on the proposed development. 5. While the Court was not aided by expert evidence as to how an appropriate BAL rating is determined, I understand that the BAL rating is an acronym for Bushfire Attack Level, and that certain design, material selection and construction considerations apply to the various BAL ratings, which range from a low level and reach a maximum level known as 'Flame Zone' in the most exposed conditions. 6. The Court was not provided with the basis for the applicant's proposed condition of consent electing to apply a BAL rating of 12.5 to the development, rather than any other Bushfire Attack Level, for example. 7. Further, as the applicant's proposed condition of consent was proferred after the date that written advice was provided by the applicant's bushfire expert, Mr McMonnies, the Court is without evidence before it on any possible implications arising from the BAL rating on the design of the building, pathways or landscaping. Character 1. In the interests of providing an overview of the proposed development, the applicant's landscape architect expert, Mr Smart, played vision of a computer generated flythrough to the Court, followed by evidence of the town planning and urban design experts relating to contention 5 which is, in effect, that the proposal is not compatible with the character of the locality. 2. This is reflected in the requirements imposed on the site by Sch 2 of the SCC which includes the resolution of issues relating to building bulk and scale. To the respondent, failing to meet the terms of the SCC means that the Court cannot be satisfied the proposed development is compatible with the surrounding land uses. 3. The respondent also relies on cl 32 which requires that a consent authority, or the Court exercising the functions of a consent authority on appeal, must not consent to a development application unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. 4. Division 2 contains a range of Principles found at cll 33-39. Relevantly, the respondent contends that the proposed development does not recognise or implement the desirable elements of the location's current character nor contribute to the quality and identity of the area and so fails to achieve the principles set out in cl 33 of the HSPD. 5. According to the respondent, the RACF has the form and function, and intensity of utilities and servicing that is more characteristic of a medium density development and so is in conflict with the adjoining R2 low density residential zone and the RU4 zone in which it is located. The RACF, in particular, will appear as a large institutional building and be even more dominating to Cooyong Road as existing vegetation that could help to screen the new development is proposed to be removed, and considering the higher level of the ground floor to remain above the flood level of the Neverfail Gully Creek. 6. The respondent's urban design expert, Ms Lennon disputed that the building form and siting related to the site's land form as required by cl 33(c)(ii), and preferred the RACF to be turned 90 degrees on the site to present the central courtyard to Cooyong Road. 7. The applicant's urban design expert, Mr Walter considers the RACF to have been placed appropriately on the site, stating that it was a very deliberate design decision to place it there because it is the lowest and the flattest part of the site, and the ILU's were arranged in a stepped form up the site to the east to respond to the rise in topography. 8. Mr Walter described the character of the ILU's in the following ways: 1. Generally the design of the ILU's recall the typical pitched roof form of sheds and agricultural buildings common in rural environs. 2. Verandahs and balconies are captured within the overall form of the building rather than projecting beyond the building's façade. 3. The frontage of the ILU's to Laitoki Road reflects the general width of frontage to existing homes located across the road and in the R2 Low Density Residential zone. 1. The respondent submits that the ILU's development represents a development that is around half the length of the site when viewed from Cooyong Road, which is not compatible with the semi-rural character of the area. Furthermore, according to Ms Lennon, while the ILU's structures may be intended to have the appearance of barns or sheds, they are incompatible with how similar building types are found in agricultural environs due to the way they have been duplicated 'en-masse' on the site. 2. To Mr Walter, this has been addressed through the general arrangement of the ILU's on the site which serve to break down the scale of the development, by 'stepping down' the site and providing what he termed 'fingers and voids' when viewed from Cooyong Road. 3. To Mr Smart, landscape is an integral part of the proposal development that will provide screening between buildings, and in the setback to Cooyong Road. Rather than serve the function of hiding the buildings, Mr Smart described the role of landscape in the proposed development was to complement the design of the building form. 4. In submissions, the applicant identified a range of building types that are permissible in the RU4 zone, and may be considered to result in a similar bulk and scale to the RACF such as respite day care centre, veterinary hospital and the like, as well as recent development in the zone such as the seniors housing development at No.83 Booralie Road. 5. The parties also dispute the appropriate treatment to the public domain addressing Cooyong Road. 6. The applicant proposes to provide a concrete kerb and gutter to Cooyong Road, but wishes retain the grass verge from the back of the kerb so as to avoid any damage to existing trees located in the verge along the southern boundary of the site. 7. To the applicant, avoiding a concrete footpath is an appropriate response in a rural, or peri-urban setting such as the RU4 zone. The common use of the verge by horse riders as part of a bridle track would also suggest a soft landscape shoulder be adopted, according to Mr Smart. Should the Council require a footpath on this frontage, Mr Smart suggests a width of 1200mm, which is narrower than the standard adopted by Council. 8. The respondent's preference is for a 1500mm wide concrete foothpath along this frontage. In her evidence, Ms Lennon stated that a concrete footpath would provide the safest path for those residents of the site who may choose to use this path but may be of more limited mobility. 9. In response, Mr Robertson, for the applicant, submitted that the accessible path that traverses the site with the aid of elevators and the like may be the path preferred by residents and for those reasons. Findings 1. The respondent submits that the Court is not bound by the fact that a SCC has been issued when undertaking an assessment under cl 4.15 of the EPA Act. However, in the event the SCC is relied on by me, the respondent asserts that the proposed development does not satisfy the requirements specified in the certificate to resolve building bulk and scale, and so the Court cannot be satisfied under cl 24(2) of the SEPP HSPD. 2. The SCC was issued 14 July 2017. The scheduled of amendments in Exhibit LL record those amendments made subsequent to the issue of the SCC and include, relevantly in relation to building bulk and scale, the following: 4. RACF reduced and reconfigured from 102 to 90 beds 5. RAC third storey deleted 7. RAC front entry level lowered 8. RAC articulation to Cooyong Road improved with stepped façade, building breaks and provision of balcony terraces 9. RAC Western end wings reduced to single storey 10.RAC FSR reduced from 5,849msqm to 4,482sqm … 1. All third storey ILU's deleted 2. 12 ILUs deleted to reduce total ILU's from 60 to 48 4. ILUs lowered to be more on grade and to reduce bulk and height 6. Roof forms revised and reduced 9. ILU FSR reduced from 7,618sqm to 6,203sqm 1. I am satisfied that the amended plans have adequately resolved building bulk and scale for the purposes of the SCC. 2. I accept the evidence of Mr Walter and Mr Smart that the form and layout of the proposed development has been developed with consideration of the site, and I am satisfied that the proposed development demonstrates that adequate regard has been given to the design principles in Division 2 of the SEPP HSPD as required by cl 32. 3. The proposed development relies on landscaping as an integral element, as is appropriate in the Terrey Hills setting. Landscaping is the vehicle by which the Duffy's Forest EEC is proposed to be restored and regenerated, and is, along with the built form of the ILU's, one half of the 'fingers and voids' strategy described by Mr Walter. 4. The nature of integration between landscape and built form is often a consideration in making an assessment on the risk of exposure, and resistance to, bushfire threat. In this case, the Council's contention in relation to inadequate provision for fighting bushfire would appear to be partially addressed by the applicant in the form of the RFS letter at [139], and the report from Mr McMonnies referred to at [147]. 5. However the response from the RFS and from Mr McMonnies pre-dates the final amended plans, and the proposed condition of consent for the proposed development to achieve a BAL rating of 12.5, and submissions by the applicant that the intent of the BAL rating would be to increase the function of the RACF as a place of possible refuge during ember attack. For this reason it is my view that the Court requires greater confidence in the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of the SEPP HSPD. 6. I have also considered the parties submissions on what is an appropriate and compatible form of development to the frontage along Cooyong Road. In a rural, or peri-urban setting, the most appropriate footway to Cooyong Road would appear to be that proposed by the applicant, which is for a concrete kerb and gutter, but for a verge with soft landscaping thereafter. 7. Such a footway was also the preferred approach of public submissions, as the soft landscaping underfoot was viewed by residents in the area as more suited to the use of such a path by horses and their riders. Directions 1. For the reasons already stated, I propose to grant consent to the development. However as the parties require my findings in order to settle an agreed set of conditions, the Court directs that within 14 days of these orders: 1. The applicant is to provide an assessment that details the effect of achieving a BAL rating of 12.5 to the RACF, including any implications for building design, material selection, landscaping or the like 2. The applicant is to provide a detailed report on the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, as set out in cl 27(2)(h) of the SEPP HSPD. 3. The parties to settle the preferred approach to the Cooyong Road verge, noting my comments at [172]. 4. The parties are to confer and to settle conditions. 5. In the event that the parties cannot agree terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for short arguments about the conditions at issue. Addendum made on 12 July 2019 1. In accordance with the terms of my directions in [174] of my judgment of 21 June 2019, the parties provided me with the following: 1. Expert report prepared by Building Code & Bushfire Hazard Solutions dated 1 July 2019 comprising a bushfire design impact response; 2. Proposed draft Bushfire Emergency Management Plan prepared by Building Code & Bushfire Hazard Solutions filed on 2 July 2019; 3. An agreed set of conditions of consent filed on 9 July 2019 containing conditions responsive to the reports prepared by Building Code & Bushfire Hazard Solutions. 1. I am satisfied that the reports and conditions of consent respond to my findings and that consent to the application should be granted on the basis that the development be carried out in accordance with those amended plans. As a result and in accordance with those findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent. 2. The Court orders that: 1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans identified in Condition 1(a) of Annexure 'A'. 2. The appeal is upheld. 3. Development consent is granted for DA 2018/1752 for a 90 bed Residential Aged Care Facility providing beds to dementia and respite care patients and 48 Serviced Self-Care Housing dwellings together with basement car parking, landscaping and ancillary works, subject to the conditions in Annexure 'A'. 4. The exhibits are returned, except for Exhibits A, LL and 7. ………………………. Tim Horton Commissioner of the Court Annexure A (148 KB) Plans Part 1 (9.79 MB) Plans Part 2 (6.24 MB) Plans Part 3 (3.19 MB) Plans Part 4 (12.7 MB) ********** Amendments 12 July 2019 - Final orders made - see Addendum at [175]-[177] 15 October 2019 - Pursuant to UCPR r 36.17, and by consent of the parties, amend Order (1) of the Court's orders of 12 July 2019 by substituting the reference to the amended plans for which leave was granted from Exhibit LL to those plans listed in conditions of consent words – specifically, substituting the words "in Exhibit LL" with "identified in Condition 1(a) of Annexure 'A'". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2019