Land and Environment Court New South Wales Medium Neutral Citation: Anglican Community Services v Campbelltown City Council [2019] NSWLEC 1600 Hearing dates: Conciliation conference on 2 December 2019 Date of orders: 05 December 2019 Decision date: 05 December 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION – seniors housing – independent living – residential aged care – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation (Savings and Transitional) Regulation 2017 Campbelltown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 44 – Koala Habitat Protection State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Water Management Act 2000 Texts Cited: Seniors Living Policy: Urban Design Guidelines for Infill Development Category: Principal judgment Parties: Anglican Community Services (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) Dr J Smith (Respondent) Solicitors: Allens (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/101308 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of its development application DA 4435/2018/DA-SL. The development application (as amended) seeks approval for the staged construction of a seniors housing development (comprising 345 independent living units across ten (10) residential flat buildings and 100 beds in a four (4) storey residential aged care facility with community facilities (including health facilities), recreational spaces and car parking) and associated earthworks, landscaping and tree removal. The development is proposed at 1 Pembroke Road, Minto (Lot 1 DP 620265). 2. On the 7 December 2018, the Applicant lodged a development application with Campbelltown Council. Following the expiration of the deemed refusal period for the application, the Applicant appealed to the Court. 3. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on the 9 August 2019. By consent, orders for a further conciliation conference were made and that conciliation conference was held on 2 December 2019. I presided over the further conciliation conference. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application. 4. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Landowners consent was provided by the owner of the land, Anglican Community Services on 20 November 2018. 2. Pursuant to s 4.14 of the EPA Act, the proposed development is located on bushfire prone land. The development is integrated development (s 4.47(1) of the EPA Act). The NSW Rural Fire Service issued General Terms of Approval (GTAs) on 22 November 2019. The requirements of the GTAs are included in the consent conditions at 20 and 50. Relevantly, the development also satisfies cl 27 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD). 3. As the development exceeds 300 dwellings, it is traffic generating development and has frontage to a classified road (cll 104 and 101 of State Environmental Planning Policy (Infrastructure) 2007 respectively). The NSW Roads and Maritime Services provided their response to the development application on 4 March 2019. 4. The proposed development is also classified as integrated development as it requires a controlled activity approval under s 91(2) of the Water Management Act 2000. The Natural Resources Access Regulator issued GTAs on 8 May 2019. 5. The conditions requested by the integrated bodies are incorporated in the conditions at 20 and 50. 6. As the development application was lodged prior to 24 November 2019, Part 7 of the Biodiversity Conservation Act 2016 do not apply: Biodiversity Conservation (Savings and Transitional) Regulation 2017 subcll 27(1) and 27(3). 7. The factors listed in the former s 5A(2) of the EPA Act were taken into account and the ecological assessment confirms that the proposed development is not likely to have a significant impact on threatened species, populations or endangered ecological communities, or their habitats. As the proposed development is not likely to have a significant effect, a Species Impact Statement was not required to accompany the Development Application: s 78A(8)(b) of the EPA Act. This conclusion is agreed in the filed Joint Report of the Ecological Experts engaged in the proceedings. 8. The subject site was previously utilised as an electricity depot and is, in part, contaminated. The development application is accompanied by a non-statutory site audit statement which certifies that the site can be made suitable for the proposed residential use, subject to conditions. The requirements of the conditional certification are imposed by the conditions of consent. I am satisfied that the will be suitable after the required remediation and that it will be remediated before the land is used for a residential care facility and serviced self-care housing. 9. Pursuant to cl 17 of SEPP HSPD, the development seeks consent for the purpose of a 'residential care facility' and 'serviced self-care housing'. 10. The proposed development is permissible with development consent as a consequence of the Site Compatibility Certificate (SCC) issued pursuant to SEPP HSPD. The SCC was issued on 2 July 2018 and remains valid. The proposed development is of a smaller scale than the development in respect of which the SCC was issued: cl 24(3)(a)(i) of SEPP HSPD. The development is consistent with the requirements imposed on the SCC at Schedule 2. 11. The proposed development complies with the general requirements of SEPP HSPD as follows: 1. The Statement of Environmental Effects demonstrates that the residents of the proposed development will have access that complies with cl 26(2) of SEPP HSPD. 2. Written evidence has been provided that the housing the subject of the development application will be connected to reticulated water and will have adequate facilities for the removal or disposal of sewer. 3. The Applicant has taken into account a site analysis prepared in accordance with cl 30, and the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development as required by cl 31. 4. The development demonstrates that adequate regard has been given to the principles set out in Chapter 3, Part 3, Division 2: cl 32 of SEPP HSPD. 5. The proposed development complies with the relevant standards specified for self-contained dwellings (cl 41 of SEPP HSPD) and written evidence has been provided that the residents of the self-care housing will have reasonable access to home delivered meals, personal care and home nursing (cl 42 of SEPP HSPD). 6. A bus capable of carrying at least 10 passengers is required to be provided to the residents of the self-care housing to meet the requirements of cl 43(1)(a) and (b) of SEPP HSPD: Condition 4A. Any facility or service provided as part of the development will be available when the housing is ready for occupation. 7. The residential care facility includes a fire sprinkler system: cl 55 of SEPP HSPD. 1. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 is satisfied as the application seeks Council approval for the removal of prescribed trees. 2. State Environmental Planning Policy No 44 – Koala Habitat Protection applies to the site as it contains potential Koala Habitat. The conclusion of the assessment of the experts is that the site does not constitute core koala habitat and a management plan is not required. 3. The proposed development is subject to the provisions of Campbelltown Local Environmental Plan 2015 (LEP 2015). 1. I am satisfied that the development is consistent with the matters listed at cl 7.2(3) of LEP 2015 in relation to flood planning. 2. I am satisfied that the development is consistent with the matters listed at cl 7.3(3) of LEP 2015 in relation to Riparian land and watercourses. 3. I am satisfied that adequate arrangements have been made to ensure the essential services noted at cl 7.10 of LEP 2015 are provided. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 980522M_02 in compliance with the instrument. 2. The development is required to comply with the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and the provisions of the Environmental Planning and Assessment Regulation 2000 ('Regulation'). The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation: Registered architect number: 7568. 3. Development contributions are not applicable in accordance with the Ministerial Direction of 14 September 2007 as the development application is made by a social housing provider as defined by SEPP HSPD. 4. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is granted leave to rely on the following amended plans and reports: Drawing No. Drawing Name. Date ACOR-MN-CV-D-2102 Rev F Siteworks Plan Sheet 2 6 November 2019 ACOR-MN-CV-D-2103 Rev F Siteworks Plan Sheet 3 6 November 2019 ACOR-MN-CV-D-2104 Rev F Siteworks Plan Sheet 4 6 November 2019 ACOR-MN-CV-D-0106 Rev A Overall Details Sheet 6 6 November 2019 Aboricultural Impact Assessment Revision D prepared by Arterra 1 November 2019 1. The Court notes the agreement of the parties that the amendments set out in the plans referred to in paragraph 2.1 of this agreement are minor. 2. The appeal is upheld. 3. Development Application No. 4435/2018/DA-SL for the staged construction of a seniors housing development (comprising 345 independent living units across ten (10) residential flat buildings and 100 beds in a four (4) storey residential aged care facility with community facilities (including health service facilities), recreational spaces and car parking) and associated earthworks, landscaping and tree removal on the land at 1 Pembroke Road, Minto, is approved subject to the conditions of consent at Annexure "A". ………………………… D M Dickson Commissioner of the Court Annexure A (282 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: 06 December 2019