Land and Environment Court New South Wales Medium Neutral Citation: The Vasey Housing Association NSW v Hornsby Shire Council [2020] NSWLEC 1029 Hearing dates: Conciliation conference on 10 December 2019; 19 December 2019 Date of orders: 23 January 2020 Decision date: 23 January 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The applicant is granted leave to rely on the amended plans listed in Condition 1 at Annexure 'A' to this agreement. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that were thrown away as a result of amending the development application in the amount of $22,500 within 28 days from the date of this agreement. (3) The applicant's written request pursuant to clause 4.6 of the Hornsby Local Environmental Plan 2013 seeking to justify the contravention of the location and access to facilities development standard in cl.26 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is upheld. (4) The appeal is upheld. (5) Development Application No. DA/1016/2018 for a seniors housing development comprising 117 residential units and associated uses at Lot 78 in Deposited Plan 3250, otherwise described as 18 Waitara Avenue, Waitara, is approved subject to the conditions in Annexure 'A' to this agreement. Catchwords: DEVELOPMENT APPLICATION (Stage 2) – conciliation conference – agreement between the parties – seniors housing – clause 4.6 variation to clause 26(2) of SEPP Seniors – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Category: Principal judgment Parties: The Vasey Housing Association NSW (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Reid (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Thomson Geer (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2019/153605 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by Hornsby Shire Council (Council) of Development Application No DA/1016/2018 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EP&A Act. 2. The DA relates to a 4,430m² parcel of land identified as Lot 78 in DP 3250 at 18 Waitara Avenue, Waitara (the site). The DA seeks consent for the construction of a 12 storey building to be used for the purposes of seniors housing and comprising a ground level café, 117 independent living units and associated resident amenities and facilities, landscaping works and a total of 152 cars in two basement levels. The DA was lodged with Council on 5 October 2018, and the appeal lodged with the Court on 16 May 2019. 3. Lodgement of the DA followed an approval by the Sydney North Planning Panel on 29 November 2017 to DA/227/2017 being a Stage 1 Development Application for a concept senior's housing development comprising a 12 storey building envelope and a maximum of 117 units. The approved building envelope was subsequently modified under the provisions of s 4.55(2) of the EP&A Act to amend the building envelope and relocate the communal open space areas and access arrangements. 4. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 and 19 of December 2019. I presided over the conciliation conference. The conciliation conference commenced on 10 December 2019 with a view on site. There were no oral submissions from members of the local community. 5. As a result of the conciliation conference the development application plans were amended and the parties reached an agreement, based on those amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The s 34 agreement was filed with the Court on 23 December 2019 and amended plans, an updated State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) Design Statement and updated BASIX Certificate were filed with the Court on 15 January 2020. 6. The main changes between the plans as originally submitted to Council and the plans the subject of the s 34 agreement are: 1. The introduction of indentations to the building envelope on Levels 1 to 11 at the ends of the common corridors to increase natural light and ventilation and provide for additional resident seating areas; and 2. As a consequence of (1) amending the floor plans resulting in changes to the unit mix such that there is a greater number of 1 bedroom units (up from 10 to 19) at the expense of 2 bedroom units (down from 66 to 57). 1. As a result of the corridor and floor plan changes internal amenity has been improved and satisfactory compliance with the SEPP 65 Apartment Design Guidelines (ADG) achieved. 2. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions, pursuant to s 4.16(1) of the EP&A Act. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings, as follows: 1. Section 4.24(2) of the EP&A Act, relating to consistency with the approved Stage 1 development application; 2. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors), and in particular compliance with the development standard at cl 26(2), relating to access to services; 3. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55); 4. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65); 5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and 6. Hornsby Local Environmental Plan 2013 (HLEP), and in particular the permissibility of the use, and cl 4.6 as a mechanism to request a variation to the development standard in cl 26(2) of the SEPP Seniors. 1. The parties have agreed that these jurisdictional matters have been met. I have also formed the opinion that the relevant jurisdictional matters identified above have been satisfied, for the reasons set out in [11] to [17] below. 2. With respect to the SEPP Seniors cl 26(2)(b) the development does not satisfy the requirement that the site be located no more than 400m from public transport services providing access to the services nominated in cl 26(1). The site is located such that the bus stop providing services to Hornsby is located within 400m, although the return journey bus stop is located 434m away – a non-compliance of 8.5%. Accordingly a request to vary that standard made pursuant to cl 4.6 of the HLEP was submitted with the DA, a copy of which was provided to the Court as part of the Class 1 application documentation. 3. I concur with the parties conclusion that the cl 4.6 variation written request, prepared by BBC Consulting Planners and dated October 2018 (the cl 4.6 request), adequately demonstrates that compliance with the standard is unnecessary and unreasonable under the circumstances, for the reasons set out in the cl 4.6 request. 4. In accordance with the requirements of cl 4.6(4)(a)(ii) of the HLEP I am also satisfied that the proposed development will be in the public interest because: 1. it is consistent with the deemed or inferred objectives of the particular standard for the reasons set out in the cl 4.6 request, and; 2. it is consistent with the objectives for development within the R4 High Density zone in which the development is proposed to be carried out for the reasons set out in the cl 4.6 request. 1. In relation to SEPP 55, and in particular cl 7(1) and (2), I have considered whether there may be any contamination and associated remediation required. I note that these requirements have been satisfactorily addressed by virtue of: 1. the Detailed Site Investigation report prepared by Coffey and dated 28 November 2018, submitted with the DA and the Class 1 application, and; 2. the advice of the parties that an Interim Auditor Advice, prepared by Paul Moritz of Douglas Partners, dated 27 August 2019, has certified that the site can be suitably remediated in accordance with the Remediation Action Plan prepared by Coffey Services Australia Pty Ltd and dated 14 August 2019 (the RAP) and; 3. the inclusion of detailed remediation conditions in the development consent, including conditions calling up the recommendations in the RAP. 1. In relation to SEPP 65 an updated "SEPP 65 Design Quality Principles Statement" (Issue C, prepared by Greg Barnett of WMK Architects and dated15/01/2020) has been submitted to the Court verifying achievement of the Design Quality Principles of the SEPP. 2. In relation to SEPP BASIX, an updated BASIX Report (prepared by Wood & Grieve Engineers and dated 13 December) and updated BASIX Certificate, number 951704M_03 dated 13 December 2019 has been provided. 3. In relation to the HLEP land use permissibility I note and concur with the parties submission that although the seniors housing use is prohibited in the HLEP's R4 High Density Residential zone applying to the site it is rendered permissible by cl 15 of the SEPP Seniors, which allows development on land zoned primarily for urban purposes of any form of seniors housing if it is carried out in accordance with the SEPP Seniors. The development and land on which it is located satisfies these requirements, subject to the cl 4.6 request. 4. 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. 5. The Court orders: 1. The applicant is granted leave to rely on the amended plans listed in Condition 1 at Annexure 'A' to this agreement. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that were thrown away as a result of amending the development application in the amount of $22,500 within 28 days from the date of this agreement. 3. The applicant's written request pursuant to clause 4.6 of the Hornsby Local Environmental Plan 2013 seeking to justify the contravention of the location and access to facilities development standard in cl.26 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is upheld. 4. The appeal is upheld. 5. Development Application No. DA/1016/2018 for a seniors housing development comprising 117 residential units and associated uses at Lot 78 in Deposited Plan 3250, otherwise described as 18 Waitara Avenue, Waitara, is approved subject to the conditions in Annexure 'A' to this agreement. ……………………………….. J Bindon Acting Commissioner of the Court Annexure A (393 KB) Plans (11.7 MB) ******** 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: 23 January 2020