Allambie Heights Village Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2021-09-02

LGERA 446; [2007] NSWLEC 827 Winter Group Architects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 546 Category: Principal judgment Parties: Allambie Heights Village Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: P Lalich (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)

Solicitors: HWL Ebsworth Lawyers (Applicant) Wilson Webb Staunton Beattie (Respondent) File Number(s): 2020/350618 Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal by Northern Beaches Council (Respondent) of Development Application DA 2020/0552 made by the Applicant (Allambie Heights Village Limited) pursuant to s 8.7 of the Environmental Planning & Assessment Act 1979 (EPA Act). The Development Application was lodged with Council by the Applicant on 28 May 2020. The Development Application was notified, as required, for the period 2 June 2020 - 5 July 2020. As a result, 112 objections were received, raising a large number of issues. (Details of the proposal and the actions of the Respondent are derived from the Statement of Facts and Contentions (SOFAC) which became Exhibit 1).
The submissions made by the objectors are included in Exhibit 2, Tab 3, Folio 9-199.The DA was also referred to the appropriate internal departments of Council, whose responses are in Exhibit 2, Tab 4, Folio 200-245. Referral of the DA was also made to three agencies external to Council - the Natural Resources Access Regulator (NRAR), the NSW Rural Fire Service (RFS) and Ausgrid. The responses of these agencies are in Exhibit 3 Tab 4, Folio 246 -250. An assessment of the DA was prepared by Council and placed on the agenda of the Northern Beaches Local Planning Panel (NBLPP) meeting for 18 November 2020, with a recommendation for refusal. (The Development Assessment Report is Exhibit 2, Tab 7, Folio 317 - 371).
The NBLPP viewed the site and its surrounds on 18 November 2020, and at the public meeting which followed the inspection, the Panel heard from 5 objectors and four representatives of the Applicant (Exhibit 2, Tab 8, Folio 379) (Written submissions from objectors made to the NBLPP form Exhibit 2, Tab 6, Folio 251-318).
The Panel, on behalf of Council, refused the Development Application: "DECISION ON DEVELOPMENT APPLICATION That the Northern Beaches Local Planning Panel, on behalf of Northern Beaches Council as the consent authority, refuses Application No. DA2020/0552 for demolition works and construction of a Seniors Living Development at Lot 2615 DP 752038, 181 Allambie Road, Allambie Heights for the following reasons: 1. The proposed development is contrary to the Environmental Planning and Assessment Act 1979 NSW having regard to s 4.15 (1)(b),(c),(d) and (e) given the insufficient information provided with the development application to address the likely impacts of the development on the adjacent natural environment, the suitability of the site and matters raised by the public with respect to the likely impacts that would be caused. REASONS FOR DETERMINATION: The Panel was of the view that the site is capable of Seniors Living Housing however given the lack of crucial information with respect to the intensification of the development and the likely impacts it would have on the adjacent Many Warringah War Memorial Park and the recognised biodiversity values contained within the park and the Manly Dam Catchment the Panel is unable grant a development consent to the proposal in the absence of crucial information. The Panel encourages the applicant to engage in formation discussions with the Council with respect to the submission of an updated biodiversity development assessment report (BDAR) that addresses the current biodiversity values contained within the park and how those values interrelate with the requirements to provide an appropriate asset protection zone for bushfire risk mitigation." (From Exhibit 2, Tab 8, folio 379)
In the Reasons for Determination, the Panel considered that potentially the proposal might be able to be approved and suggested that further discussions between the parties should occur.
The Respondent wrote to the Applicant on 24 November 2020 providing the notice of determination by the Panel.
The Applicant then initiated the appeal against the refusal; the Court assigned the matter to a s 34 conciliation conference under the provisions of the Land and Environment Court Act 1979. A number of residents made written submissions to the conciliation conference; some individuals made several submissions. All of the submissions prepared for the conciliation conference appear in Exhibit 2, Tab 11, folio 388 - 461. The s 34 conciliation conference commenced on 9 March 2021, but no agreement between the parties was achieved and the conference was terminated on 23 April 2021. Subsequently, the matter was listed by the Court for hearing.
Subsequent to the termination of the s 34 conciliation, and prior to the hearing, the parties continued without prejudice discussions (as suggested by the NBLPP). As a result of these discussions the Applicant sought to amend its proposal in response to Council's concerns and provided amended architectural plans and supporting documentation. The Council notified residents of the suggested amendments (Exhibit 2, Tab 11, Folio 468 - 469). In its notification, Council stressed the without prejudice nature of the plans and documentation, so the Applicant was not compelled to rely on them, and might continue to rely on the existing plans, or seek to rely on differently amended plans. Council also advised that the without prejudice status of the documents meant that the recipients could not make them available to any other person, except with prior consent from the Applicant. Submissions received in response to the notification are in Exhibit 2, Tab 14, Folio 470 - 477.
I have described the passage of the proposal since the DA was first submitted to illustrate that it had been subject to considerable scrutiny and a large number of citizens had raised concerns. A number of objector submissions drew attention to the fact that the current application was not the first which had been proposed. The previous proposals are not relevant to the assessment of the current proposal, but the objectors' comments show that some of the objectors have been involved in gathering information and making submissions for far longer than the time the current application has been under consideration.
In seeking submissions, a consent authority is not conducting a popularity poll. The number of submissions is not unimportant as it demonstrates the strength of public interest, but more weight would be placed on the content of submissions identifying issues and providing the basis for the arguments advanced. In the case of many of the submissions made by objectors in this matter, there is information derived from many years of involvement with the local environment.
The development application sought approval for demolition works and construction of a seniors living development comprising 24 independent living units in two buildings. The site has the street address of 181 Allambie Road, Allambie Heights, with a legal identity of Lot 2615, DP 752038. Figure 1: Aerial image of the subject site (Source Six Maps). From Exhibit A, Tab 1, page 7.
The site has been used for social housing providing 55 units (the William Charlton Village), since 1966: Figure 2: Land use composition and nearby key sites/features. From Exhibit A, Tab 1, Page 11.
The figure illustrates the location of other seniors and persons with a disability accommodation in the vicinity of the proposal.
The bushland to the west and south west of the site is part of the catchment of the Manly Dam and is Crown Land managed by the Council. Long known under the name of Manly Warringah War Memorial Park, it has, since 2017, been a State Park, under the name of the Manly Warringah War Memorial State Park. The part of the park adjacent to the site includes part of the catchment of Curl Curl Creek, which flows into Manly Dam. Potential impacts of the proposal on the environments and biota of Curl Curl Creek were the focus of many of the concerns raised by the objectors.

The hearing

Owing to COVID restrictions, it was not possible to conduct a site inspection at the commencement of the hearing, as would have been customary under pre COVID circumstances. The hearing itself, including the submissions from the objectors and the examination of the experts was conducted remotely using MS Teams.
During case management discussions with the parties, prior to the hearing, it was agreed that the Applicant would obtain drone footage of the site and its surrounds. This was done during the day before the hearing (on 1 September 2021) and shown at the start of the hearing. (The drone imagery was also supplied to the Court on a USB stick, which became Exhibit B). The drone imagery was of great assistance, and I am grateful to the Applicant for having obtained it at such short notice.
The objectors' submissions were well prepared and contained many helpful images. The objectors also coordinated their submissions, so that each concentrated on a particular theme. Necessarily, there was some overlap between submissions, so that each could stand alone, but overall, there was minimum repetition. I am grateful to the objectors for the time they put into preparing submissions such that overall, the presentation ran much more smoothly than is sometimes the case.
The discussions between the parties that had been encouraged by NBLPP (see [4] above) continued up until the hearing. At the start of the hearing, the Applicant indicated that it wished to rely on an amended application. This was not opposed by the Respondent, and the amended application and associated documents became Exhibit B. The objectors had been aware that changes to the application would be proposed but had not been aware of all the details. The changes to the application in the amended documents were in large part responses to concerns raised by the Council and in the submissions from the objectors. Mr Lalich spoke to the proposed changes and pointed out where they would occur when showing the drone footage.
A major concern of both the Council and the objectors was that the original proposal would have had unacceptable impacts on bushland and biodiversity. One of the components of the concern was that the Asset Protection Zone, (APZ) required by the RFS, was, in the original proposal, located within the adjoining reserve rather than within the site, which is held by the Applicant on a lease from the Crown.
The proposal includes the demolition of a number of existing structures and the removal of trees, and the construction of a seniors housing development of 24 independent living units in two buildings (A and B), a communal building including a gym, spa and activity spaces, with associated landscaping and drainage works.
The amended proposal is summarised in the Amended Statement of Environmental Effects (Exhibit A, Tab 1) as; relocation of a total of four dwellings (two at ground level and two at first floor level) from the western end of building B to the eastern end of building B (one on the ground level and one at first floor level) and two to the western end of building A (one at the ground level and one on the first floor); relocation of the communal building; realignment of the vehicle and pedestrian access to accommodate these changes to the building locations.
As a consequence of these changes, the APZ is located within the site and does not extend into the adjacent reserve.
The proposed changes are illustrated in Exhibit A (Tab 7 (Bushfire Management Plan. Annexure 1 figure 5): Figure 3:The amended layout of buildings and Asset Protection Zones (APZs). From Attachment A to Exhibit D. Figure prepared by Total Earth Care.
This map shows the location of bushland areas which would remain, the location of buildings and the APZs. To the north of the site there is an above ground Sydney Water pipeline: Figure 4: Image 6 from Exhibit D. The water pipeline is visible in the background.
Sydney Water is supportive of granting a licence to the Applicant for access to the Sydney Water land for purposes of management of the APZs (Exhibit A, Tab 14). The conditions of consent which have been proposed and which would apply if consent were granted include a deferred commencement condition requiring the granting of a licence by Sydney Water which would permit a portion of Sydney Water land to be managed as an Inner Protection Area.
Mr Patterson indicated that the Respondent did not oppose the substitution of the plans in the original application by the amended plans, as "the amendments are ameliorative" (transcript 02/09/21, page 8, line 37). However, he was of the view that the changes were more than minor and should be the subject of a costs order under s 8.15 (3) of the EPA Act. Mr Lalich did not disagree.
Accordingly, I granted leave to the Applicant to rely upon the amended application, plans and associated documents in Exhibit A. The Applicant is to pay the Respondent's costs thrown away, pursuant to s 8.15(3) of the EPA Act as agreed or assessed. Mr Patterson also provided consent from Council for the Applicant to upload the amended plans on the Department of Planning's portal as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

The variation request to modify the permitted maximum building height

The Local Environmental Plan applicable to the site is the Warringah Local Environmental Plan 2011 (WLEP 2011). The Northern Beaches Local Government Area (LGA) was created by the amalgamation in 2016 of the previous Manly, Pittwater and Warringah LGA's. Within what was the former Warringah LGA, WLEP 2011 continues to apply. Under WLEP 2011, the site is zoned R2-Low Density Residential, and under the zoning table for Zone R2 in WLEP 2011, development of a residential flat building is not permitted. The residential buildings proposed constitute residential flat buildings. However, development of the type proposed is permitted under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (HSPD 2004).
HSPD 2004 cl 40(4)(a) imposes a maximum height limit of 8 metres for any building in a proposed seniors living development in a residential zone where residential flat buildings are not permitted.
HSPD 2004 defines height and ground level differently from the definitions in a standard instrument LEP.

"height" in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

"ground level" means the level of the site before development is carried out pursuant to this Policy. Definitions from HSPD 2004 cl 3.

Part of the proposed development exceeds the maximum height limit of 8 metres by 0.65 metres.
Clause 4.6 of WLEP 2011 provides an avenue for approval, by the consent authority, of a deviation from a development standard. The 8-metre height limit in cl 40(4)(a) HSPD 2004 is a development standard, to which exemptions can be granted under cl 4.6 WLEP 2011.

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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning 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 Planning Secretary before granting concurrence. ………….

The Court, acting as consent authority for purposes of the appeal, is able to consider granting an exemption if the Applicant has made a written request which adequately addresses the matters required to be addressed by cl 4.6. The Applicant's written request was prepared by Planning Ingenuity Pty Ltd and is included in the Revised Application, Exhibit A at Tab 1, Annexure C. Clause 40 (4)(a) of HSPD 2004 does not expressly exclude application of cl 4.6 WLEP 2011. (Variation Request, Exhibit A, Tab 1, Annexure C, page 50). Clause 4.6 (2) refers to 'any other planning instrument'. HSPD 2004 is an environmental planning instrument. The necessary approach to consideration of cl 4.6 modification applications has been provided by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action'). The Applicant's written request pursuant to cl 4.6 WLEP 2011 to vary the development standard for height of buildings in cl 40(4)(a) of HSPD 2004 was not opposed by the Respondent. Nevertheless, the Court, acting as consent authority and standing in the shoes of council, is required to make an independent assessment of the case made by the applicant for variation in the height standard. I must form two positive opinions of satisfaction under cl 4.6 WLEP 2011 in order to enliven the power under cl 4.6 (2) to grant consent notwithstanding the contravention of the 8-metre building height standard in cl 40(4)(a) of HSPD 2004.
The Applicant made reference to the judgement of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'). This matter included an objection under SEPP 1 which was the predecessor to the request mechanism in cl 4.6 Standard Instrument LEPs. In Initial Action, at [16], Preston CJ stated that Wehbe was applicable to consideration of cl 4.6 requests.
The Applicant considered that compliance with the 8-metre height standard was unreasonable and unnecessary as the objectives of the standard were achieved. The Applicant also argued that there were sufficient environmental planning grounds to justify contravention of the development standard, providing 10 reasons why this was so.
These can be briefly summarised. Firstly, the 0.65 metre contravention of the 8-metre height limit is restricted to the southern part of a portion of building A and is the result of the slope of the ground surface and the need to design the building without internal stairs or ramps to maximise occupant amenity and usability. The contravention is compatible with the character of the streetscape and locality. There is no adverse impact on solar access for neighbouring properties, as all shadows will fall within the subject site only, and there are no privacy impacts as the area of the exceedance does not contain any windows that would allow views of neighbouring properties and does not result in any view loss for neighbouring buildings. The proposed development meets the objective of the development standard as well as the objectives of the R2 Low Density Residential zone, and of s 1.3 of the EPA Act.
The Applicant also drew attention to Initial Action at [86] - [87] where Preston CJ clarified that a cl 4.6 request did not need to achieve a better planning outcome than that proposed in the original application.
Clause 4.6(4)(a) (ii) requires consideration of the objectives for the standard.
There are no specific objectives provided in HSPD 2004 cl 40 (4)(a) and no objectives relating to building height elsewhere in HSPD 2004. The Applicant drew attention to Winter Group Architects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 546 ('Winter'), a matter also involving a seniors development. At [10] Murrell C suggested that the objectives of a height control (expressed as a restriction to two storeys rather than a numerically defined height) were: "…to control impacts on adjoining neighbours to ensure that the proposed development is not overbearing in terms of bulk, scale and height and also in terms of overshadowing impacts and privacy concerns."
The Applicant considered also the objectives of WLEP 2011 cl 4.3: 4.3 Height of buildings (1) The objectives of this clause are as follows-- (a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access, (c) to minimise any adverse impact of development on the scenic quality of Warringah's coastal and bush environments, (d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities.
The Applicant considered that these objectives would be appropriate to apply in the context of the cl 4.6 request. Addressing the more specific objectives of WLEP 2011 rather than the generalisations in Winter, the Applicant considered height and scale of the development (relevant to the zone objectives (a) and (b)) were compatible with (and indeed less than) existing development in the area.
The Applicant considered that zone objective (c) was met given the nature and location of the proposed development relative to other buildings in the neighbourhood
Clause 4.6(4)(ii) also requires the consent authority to be satisfied that granting consent would be in the public interest because it is consistent with the objectives of the zone in WLEP 2011, which are: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
The Applicant argues that the proposal will assist with meeting the housing needs of the community. This could be said of probably all proposed housing developments, and no specific data on need in the locality were provided.
The development as proposed includes facilities for the residents above those required just for accommodation.
The objectors might not consider that the proposal is "in harmony with the natural environment" of Warringah, but the objectives for the development of Zone R2 relate to visual issues from a human perspective, and evidence of visual impacts was not provided. Given the generality of the zone objectives, what is proposed is not obviously contrary to them.
Clause 4.6 (4)(b) requires that before a consent authority has the power to grant development consent for a development application for which a cl 4.6 variation request has been made, the concurrence of the Secretary of the Department of Planning and Environment must be obtained. Under cl 64 of the EPA Reg, the Secretary gave written notice attached to Planning Circular PS 20 - 002 issued on 5 May 2020 to each consent authority, that they might assume the Secretary's concurrence for exceptions from development standards granted in respect to applications under cl 4.6, subject to conditions in the table to the notice.
The consent authority is required to consider whether a modification request gives rise to any matter of significance for State or Regional Environmental Planning. The proposed contravention of the height standard does not raise any such issues.
Consent authorities are required to consider the public benefit of maintaining the development standard. The Applicant argued that there is no public benefit in maintaining strict compliance. I consider that given the exceedance is limited to a small part of one building and given the setting of the proposed development and its distance from existing development, the Applicant's position is justified.
I therefore uphold the Applicant's cl 4.6 request.
I note the lack of opposition from the Respondent to the cl 4.6 request and that the built form was not subject to any objections by the Council officers in their submission to the NBLPP, and that the Panel raised no issues relating to the built component of the building. The objectors' primary concerns are the natural environment and the construction process rather than the building if completed.
I note that subsequent to the hearing, HSPD 2004 was repealed as from November 2021 and replaced in the new consolidated State Environmental Planning Policy (Housing) 2021 as Pt 5. Schedule 7A of the 2021 SEPP includes savings provisions in cl 2(1)(a): 2 General savings provision (1) This Policy does not apply to the following matters - (a) a development application made, but not yet determined, on or before the commencement date, ……..
Thus, the application is to be assessed under the provisions of HSPD 2004.
Granting the request to modify the height standard removes a bar to the Court's jurisdiction to consider the matter further.

The Objectors' Submissions

Six of the objectors were chosen to address the Court. Their submissions for the purpose of the Court proceedings were included in Exhibit 3. Cross reference to earlier submissions made by the same objector, included within the Respondent's bundle (Exhibit 2), were helpfully included in Exhibit 3. I will briefly summarise the major points made by each of the speakers in the order of their presentations.

Mr. David Beharrell

Mr Beharrell is a community representative on the Manly Warringah War Memorial State Park Advisory Committee and spoke on behalf of the committee. Mr Beharrell said that the park is a significant community and recreational asset enjoyed by members of the local and regional communities and is also a place of remembrance. The State Park is managed by Northern Beaches Council, in which task it is guided by a plan of management.
The proposal before the Court is not on State Park land but is adjacent to it, and the proposed development "will impact the integrity of the State Park" [transcript 02/09/21, page 20, line 26], so the committee objects to the development for a number of reasons, including inconsistency with some of the planning controls. Mr Beharrell acknowledged that the committee's submission had been prepared before they were aware of additional information that had become apparent that morning. The committee considered that the restriction of the APZ to the site should be maintained in perpetuity.
The committee remained concerned that there would be loss of vegetation and impacts on the downstream environment both during the construction and operational phases of the development.

Ms Jacqui Marlow

Ms Marlow is a member of the Save Manly Dam Committee, which has obtained funding for research on the flora and fauna of the Manly Dam area. The Committee had employed Dr Brad Law to investigate the mammals and birds, and Dr Arthur White to investigate the frogs and reptiles. Both Dr Law and Dr White are well respected ecologists with many years of experience in the Sydney region. Their reports were subsequently provided to the Court as additions to Exhibit 3.
Ms Marlow pointed out that despite the intensive studies they had not detected a number of species known from the Narrabeen Lagoon catchment to the north. In particular, no koalas, southern brown bandicoots or platypus had been detected in the Manly Dam catchment. She put this down to the proximity to suburbs. She did stress that the studies demonstrate the importance of the area for eastern pygmy possums with the highest density occurring about 50 metres west of the proposed development, but she stressed that the population of eastern pygmy possums in the Manly Dam catchment was enigmatic and very little was known about it.
She also stressed the importance of the Manly Dam area to residents from all over Sydney and referred to information provided by Ms Crawford (a council officer) (transcript 02/09/21, page 17, line 40-41) about the popularity of the trails in the State Park for mountain biking, a use that had increased during the COVID outbreak.

Mr Greg Wallis

Mr Wallis addressed potential impacts downstream of the development and spoke to his written submission in Exhibit 3 folio 12-25 and took the Court on an illustrated walk from the subject site down the tributary creek to Curl Curl Creek. The relationship of the site to Curl Curl Creek was depicted in Figure 3 in his submission at folio 16 and is reproduced below: Figure 5: An overview of the upper catchment of Manly Dam and Curl Curl Creek showing the walking tracks and creek lines within part of the reserve. The proposed development at 181 Allambie Road shown in pink. From Figure 3, Exhibit 3, Folio 16, submission of Mr Wallis.
Mr, Wallis drew attention to the importance of Curl Curl Creek as a habitat for Galaxias brevipinnis, a small native fish species, and the only fish in the upper reaches of the Creek, and two species of crayfish, Euastacus spinifer, the Sydney giant spiny crayfish, and the Sydney spiny crayfish, Euastacus australasiensis. (The genus Euastacus contains a number of species in eastern Australia, and is not to be confused with the yabby, Cherax destructor, native west of the Dividing Range.)
Mr Wallis was concerned about possible changes in the flow regime in the Creek as a result of increased impermeable areas in the subject land, and quicker pulses of run off rather than slow infiltration.

Ms Ann Collins

Ms Collins is a local resident and a committee member of the Save Manly Dam Catchment Committee and a community representative on the Manly Warringah War Memorial State Park Advisory Committee. She strongly agreed with the submissions of the three proceeding speakers.
She was critical of the consultation process for the proposal: "There's a new statement of the environmental effects which I hadn't even seen until this morning. This feels like a process of approval by attrition where you exhaust all the volunteers who provide objections. In particular, the trust made up predominantly of war vets who are unable to keep submitting ‑ everyone's exhausted from having to resubmit and resubmit on very similar issues." Transcript 2/09/2021 page 34, line 7 - line 12
She also questioned the nature of the proposed development - "I wonder if 24 luxury living spaces are considered as public use" (transcript 02/09/21 Page 33 line 25-26) and was critical of the management over the years of the site and in particular, she suggested there had been a failure to prevent the spread of weeds on the site, contrary to the requirements of the crown lease to maintain the area.

Mr Malcolm Fisher

Mr Fisher spoke to the importance of protecting the water quality in Manly Dam which she considered was the "last place in Sydney where you can still swim in fresh clear unpolluted water" (transcript 02/09/21 page 35, line 30). Maintaining the water quality in the catchment would also benefit the aquatic species in the waterways. He was critical of the lack of surveys of the aquatic fauna and downstream habitats.

Ms Ann Sharp

Ms Sharp highlighted the planning context of the development. "The context of this development within the catchment is highly relevant to the issue of site compatibility, and that I understand really is the key issue because the development application is submitted under the seniors housing SEPP. The site is not suitable for this proposed development for a number of reasons that include the increase in impervious area from 10% to 60% of land at the headwaters of the Curl Curl Creek, and the bushfire prone issue which is an absolute constraint being next to the reserve, and the removal of vegetation in the environmentally sensitive catchment area." (Transcript 02/09/2021, page 39, line 16 - line 41)
She also highlighted the need to approach assessment through the lens of the precautionary principle: "The precautionary principle is relevant to this development. It's important to take into account the likely, as well as the potential environmental impacts that will occur and the cumulative impacts that will occur in the future. So again, I was ‑ we are concerned that a number of the environmental and planning issues raised in the public submissions were not considered adequately. This is clearly stormwater management. The fact that the land to be developed is within a group A catchment and currently undeveloped with less than 10% impervious area, in our view the development does not satisfy the stormwater quality objectives and criteria for environmentally sensitive catchments that applies to this development and the resulting increase in pollutant loads would degrade Curl Curl Creek. The heritage conservation area that Curl Curl Creek is located in the heritage conservation area ‑ it flows through it ‑ so the impacts and the likely impacts on that area need to be considered, but because there's no information or a consideration of the impacts on the park, that still has not been included as a matter of ‑ it hasn't been considered adequately. Again, bushfire hazards and the requirement for hazard reduction, future asset protection, and removal of vegetation are in direct conflict with the conservation values of the heritage conservation area. The site compatibility criteria, the development is not compatible with the surrounding land use for conservation, and it would have a negative impact on the natural environment, and that impact is also ‑ it would be a result of the human impact with the adjoining development which is 24 three‑bedroom apartments. The stormwater management plan acknowledges that there is currently no inground drainage infrastructure on the area of the site being considered for development." Transcript 02/09/2022 page 39, line 16 - 43.
She also considered it important that the State Park was on the heritage schedule of WLEP 2011.
One matter raised by several of the objectors, which gave rise to their concerns about the construction phase of the development if it were to be approved, was the construction, several years ago, of the Manly Vale school. The school site was, like the proposed site at Allambie Heights, on high land above a steep bushland fall. A heavy rainfall event while the school was being built resulted in silt laden stormwater heavily impacting the creek which received drainage from the school site.

Expert Evidence

The only joint expert report tendered during the hearing was that dealing with ecological issues which became Exhibit D. The report was dated 1 September 2021, the day before the hearing. (Given this timing the objectors when they gave their evidence were not aware of the contents of this report). The report was prepared by Mr Robert Blackall and Mr Brendan Smith, the experts for the respondent, and Mr Andrew McGahey of Total Earth Care for the Applicant.
The experts had the benefit of the latest version of the plans for the proposal, and also the Biodiversity Development Assessment Report (BDAR) and the BDAR Addendum (Exhibit A, Tab 11 and Tab 12 respectively), the Bushfire Management Plan (Exhibit A, Tab 7), the Biodiversity Management Plan (Exhibit A, Tab 10) (all plans prepared by Total Earth Care), and the Bushfire Hazard Assessment prepared by Australian Bushfire Consulting Services (Exhibit A, Tab 10).
The experts were in complete agreement in relation to the contentions relevant to their area of expertise.
Specifically, the contentions (in Exhibit 1) that were addressed by the experts were: "B.1 - CONTENTIONS THAT WARRANT THE REFUSAL OF THE APPLICATION Impact on Bushland and Biodiversity 1. The proposed development should be refused as the footprint is in proximity to the western portion of the site, and the APZ extends into adjoining land parcels, which are covered with high quality native vegetation and threatened species habitats."
The experts were agreed that they could not comment on particular (d)-regional form and scale of the development and its suitability to the site area. However, in relation to the other particulars of the contention there was agreement that the amended design and revised plans had removed the need for the APZ to extend into the council managed reserve (particular (a)); The direct and indirect impacts on the native vegetation have been avoided or minimised to an acceptable level, and a biodiversity offset obligation had been calculated regarding the residual impacts as identified in the BDAR, (particular (b)); a Biodiversity Management Plan will be implemented. Passive recreation areas are identified in the Landscape Concept Plan and new pedestrian walkways originally proposed will not be directed into the remnant bushland on the site (particulars (c) and (d)). "APZ 2. The proposed development should be refused as a part of the required APZ is located on land external to the site and the proposal relies on ongoing management of vegetation on land within the adjoining public reserve and Sydney Water pipeline corridor."
The experts agreed that the APZ to the south west does not rely on land within the adjoining public reserve (particular (a)) and the extent of impact of the APZ on areas mapped on the Biodiversity Values map is unlikely to result in a serious and irreversible impact (particular (b)). "B.2 - CONTENTIONS THAT MAY BE RESOLVED BY CONDITIONS OF CONSENT Pedestrian walkways 4. The inclusion of pedestrian walkways into the native bushland area of the site mapped on the Biodiversity Values map will have an unreasonable impact on wildlife corridors and native vegetation. These elements could be deleted by condition of consent."
The experts agreed that the pedestrian walkway had been removed from the amended landscape concept plan drawing, thus resolving the contention. "APZ 5. Planning for Bush Fire Protection 2019 indicates APZs should be contained wholly within development sites and this will facilitate appropriate management by the development site owner in perpetuity. Should the proposal be suitably amended to restrict the required APZs to the site a condition of consent will be imposed in this regard."
The experts agreed that the design had removed the need for an APZ to extend beyond the site boundary and that Sydney Water is willing to grant a licence agreement to the Applicant to manage an APZ for the life of the buildings. The need for an agreement is confirmed in the General Terms of Agreement issued by the RFS. "B.3 - CONTENTIONS THAT RELATE TO A LACK OF INFORMATION Native vegetation and threatened species habitat 7. The location of the proposed APZ within the adjoining Sydney Water land to the north (APZ (3) of Map 2), relies on the written agreement of Sydney Water and the impact on native vegetation and threatened species habitat has not been properly assessed in the BDAR."
The experts agreed that Sydney Water will enter into a licence agreement for management of land associated with the pipeline. Additional Biodiversity Offset Credit obligations associated with management of the pipeline APZ are to be created, under s 7.13 of the Biodiversity Conservation Act 2016.
The authors of the joint report on ecological issues were called to give evidence. The Respondent sought leave to call Mr. David Hellot, a senior catchment officer for the Northern Beaches Council who is a water engineer. Mr Patterson indicated that Mr Hellot was called for the purpose of providing input that may benefit the Court in relation to matters raised in the oral evidence of the objectors.
Mr Lalich had no objection to Mr Hellot being called for this purpose and I granted leave for him to appear.
Mr Patterson indicated that following the input of the objectors in their submissions, the Respondent had formed the opinion that amendments to the proposed draft conditions were required (Transcript 02/09/2021 lines 1 -19). Mr. Blackall indicated that the Respondent considered that conditions on use of chemicals, use of low nutrient soil and issues regarding to the carwash bay would be needed and would be developed (transcript 02/09/2021, lines 21 -31).
Mr Hellot indicated that there had been discussion about what had been referred to as a retention basin, better termed a detention basin, for stormwater drainage on the site. This discussion included the size of the basin and the nature of the bottom. This was not to be concrete but would allow filtration of the water to reduce movement of silt and pollutants off the site (transcript 02/09/32021, page 66, lines 8 - 49).
Ms Sharp in her submission suggested that there should be demonstration that what was proposed met Sydney Water's NorBE requirement (Neutral or Beneficial Effect on water quality).
Mr Hellot said the council had not done a formal full NorBE assessment, but that MUSIC modelling had been carried out, and that the comparison of the pre and post-construction run off water quality with installation of the detention basin showed a post construction improvement in water quality (Transcript page 67 lines 6 - 23).
Mr Hellot and Mr McGahey agreed that monitoring the construction phase to avoid occurrence of events similar to those that had occurred at the Manly Vale School would be essential. "WITNESS HELLOT: That's right. I don't have the text just right in front of me but in the conditions we are linking basically styles of monitoring program. We are asking council to be made aware a certain time before rain events, or if a rain event is forecast we should be made aware and that give us the possibility to check the sediment and the ..(not transcribable).. and the urgent control measures beforehand and make sure that we find some forms of covering of ..(not transcribable).. that was one of the main issues that the school project, from all experience the sediment that the community had been reporting ..(not transcribable).. during the construction activity at the school was strongly linked to a poor management practice during the construction. WITNESS MCGAHEY: That's been our experience too when I have been managing stormwater on big construction sites. If we can actually deal with the silt before it becomes silt, so actually when it's a dust and it's dry and before it gets wet, that's been a key thing. Yeah, so we're not over it's a 3000 litre detention tank during the construction phase which is going to be a reasonable size for the development. Obviously it's been sized by experts but it's not it's not capable of taking everything but we can do our best to clean the site as best we can prior to a storm event occurring." Transcript page 67 line 33 to page 68, line 1.

Consideration

I am required, when exercising the functions of the consent authority, to take into account s 4.15 (1) (b) of the EPA Act: (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
"The likely impacts of that development" should not be interpreted narrowly; they encompass not just the direct and immediate impacts of a proposed development on the site where construction will occur but also off - site impacts. (Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [6] per Preston CJ).
Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44]: "The impact must be one flowing from the development the subject of the development application: the question is how remote a 'likely' impact must be, in order to disqualify it from the scope of the consideration" and at [46] "Some such limitation must follow from the concept of 'impact': as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. 'Likely' in this context has the meaning of a 'real chance or possibility' rather than more probable than not…"
There must be a connection between the likely impact and the development proposed, and the consideration required by s 4.15 (1) (b) EPA Act is restricted to areas "in the locality". The relevant locality may vary in size between projects because of the nature of the environment likely to be subject to impacts and the nature of the proposed development.
The submissions of the objectors, both written and as presented in Court, were particularly focused on off- site impacts in the Curl Curl Creek catchment. These submissions influenced the approach of both parties to the development of appropriate conditions to be applied if the project were approved. The development proposed is permissible with consent, so that concerns from objectors about it being at the luxury end of the market do not give rise to questions for my consideration, and the vicinity is already (and has been for some considerable time) part of a seniors living precinct.
The Respondent is bound by the contentions included in the SOFAC (Exhibit 1), unless it has sought leave to amend the existing contentions or make deletion or addition to the contentions (Mr Patterson transcript page 75, lines 45-46). Council has not sought any such leave.
As a consequence, at the end of the evidence, the contentions had been almost completely resolved, and the outstanding issues could be addressed by conditions which could be imposed
Both parties agreed that the submissions of the objectors, both before and during the hearing, required that the conditions needed strengthening, and during the course of the hearing discussions continued between the parties as to appropriate additions and changes to conditions. Although the scope of changes had been generally agreed, further work was required on the detailed wording. Conditions agreed by both parties were provided on 8 September 2021.
The development proposed is to occur on land leased by the Applicant from the Crown. Although the development is to be built within the subject site, the Applicant is required to demonstrate that off-site impacts directly attributable to the development are prevented or minimised. The land adjacent to the site is the Manly Warringah War Memorial State Park, managed by the Respondent. The development now proposed by the Applicant addresses off-site impacts on Curl Curl Creek through the provisions for managing run off in terms of water quality and quantity.
The catchment is an important location for visitation and the carrying out of various recreational activities. This usage has impacts which require managing, independent of any impacts attributable to the proposed development. The proposed conditions of consent requiring the appointment of an aquatic ecologist and for the monitoring of the areas downstream of the proposed development will result in scrutiny of possible impacts off- site of the proposed development but will also contribute to monitoring and management of other activities in the catchment.
Future environmental management, both of the development site, and downstream of it, will have to meet statutory obligations, but major aspects will also be governed by a number of management plans.
Such plans have long been recognised as important vehicles for the management of potential environmental impacts of projects (Transport Action Group Against Motorways Inc v Roads & Traffic Authority & Anor (1999) 46 NSWLR 598; [1999] NSWCA 196 at [122]).
Management plans must appropriately address matters arising as a consequence of the particular circumstances of the site or area to which they apply.
In Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] 315 ('Renaldo'), Brown SC developed (at [54]), planning principles for determining whether the plans of management proposed to be applied to a particular development are appropriate. The wording of the sixth principle regarding incorporation of Management Plans within the conditions of consent, was changed slightly in Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 - but the change was not substantive, and the principle is satisfied, as are the other Renaldo principles.
The inclusion of the subject site on the Biodiversity Values Map required that the development application be assessed (Biodiversity Conservation Act 2016, Biodiversity Conservation Regulation 2017 cl 7.3) through the Biodiversity Offsets Scheme pathway.
The BDAR (Exhibit A, Tab 7) discussed avoid and minimise options, and included the biodiversity credit calculation required for residual impacts to be offset. The credit obligations are listed in Conditions 16 - 19.
The ecological studies and associated plans do not provide for the maintenance and management of species and communities within the waterways external to the site, except through management of water quality and quantity entering from the site, and through the reports of the project ecologist.
I accept the objectors' evidence that the waterways have ecological and conservation significance, and that among the important species present are the two crayfish species and the climbing galaxias. What did surprise me was the apparent absence of council and agency reports on the ecology of the waterways. I was not taken to any correspondence to or from Crown Lands regarding the development proposed or any potential impacts within the area leased by the Applicant or the State Park. Similarly, I was not made aware of any correspondence to or from Fisheries NSW who, under the Fisheries Management Act 1994, have responsibilities for the conservation and management of much of the biota and environment of waterways. There was little discussion of the consequences of the listing of the Manly Dam Conservation Area in Sch 5 of WLEP 2011, as designated on the Heritage Map Sheet 008A in WLEP 2011.
Without the work of the objectors and their organisations in both studying the biota and obtaining funding to commission reports, little would be known about the ecology of the Curl Curl Creek system. In addition to the reports of Dr Law and Dr White already referred to, there has been detailed study of the climbing galaxias over a number of years by Sonya Ku, who had made several submissions, and was the author of the report, commission by the Save Manly Dam Catchment Committee from consultants Humble Carson, Status of Catchment Indicator Species for Aquatic Biodiversity, Galaxias Brevipinnis Status Report, Action Plan and Catchment Citizen Science Strategy (Exhibit 3 folio 42-65).
The agreed conditions include both deferred consent conditions and operational conditions which address monitoring and addressing off site impacts.
Deferred commencement condition 1 requires that the Applicant must provide an Environmental Management Plan (EMP) requiring that all foreseeable off-site impacts should be considered prior to construction commencing and an effective plan should be developed to manage impacts on the natural environment and to prevent foreseeable adverse impacts on sensitive environments.
The conditions require the engagement of a project ecologist (aquatic specialist) who will have input into the EMP. The EMP is also required to provide for adaptive management.
The deferred commencement conditions require that stormwater drainage plans are to be submitted to the Respondent for approval before construction can commence.
Amongst the operational conditions, Condition 25) requires the engagement of a project ecologist (aquatic freshwater specialist) to carry out additional ecological investigations for the duration of the onsite works. This specialist is to have experience in the Sydney region and knowledge of Galaxias brevipinnis.
Condition 32) requires the appointment of a project ecologist to ensure all biodiversity protection measures are carried out in accordance with the conditions of consent and of the approved BDAR.
Conditions 38) bright lighting, 39) chemical use, 40) landscaping work, 41}, carwash bay, go beyond measures dealing with these topics ordinarily applied in other approvals, and address issues raised in submissions and during the hearing.
Limiting erosion during construction was of particular concern to the parties and the objectors. Condition 55) provides for the project ecologist to design a water quality and sampling program to monitor effectiveness of erosion and sediment control. Site inspections are to be carried out at least weekly but more frequently during rain periods or when rain is expected.
The RFS issued General Terms of Approval (GTAs) and a Bush Fire Safety Authority under s 100B of the Rural Fires Act 1997 to Council on 15 October 2021.
The conditions as a whole are more onerous than those, that in my experience, are applied to many other developments. This is appropriate given the sensitivity and importance of the broader area within which the development is situated.
The plans of management (and related documents) will guide the environmental management of the site during and after the construction phase and have input into management of adjacent areas.
The measures in the conditions will be effective only if there is strict compliance and monitoring. I must assume that the parties agreed to the conditions in good faith and that the conditions will be applied. The Court should assume that conditions will be obeyed has long been settled. The authorities extend back to at least the decision of the Supreme Court of South Australia in Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 ('Kouflidis'), as was explained by Moore SC (as he then was) in Chami v Lane Cove Council [2015] NSWLEC 1003 at [154]: "the position has always been clear since then that a consent authority granting an approval for a development subject to conditions is required to assume that those conditions will be obeyed."
In Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 ('Jonah') at [35], Preston CJ confirmed that the line of authority which can be traced from Kouflidis remained the applicable law in New South Wales.
In Cday Electrical Services Pty Ltd v Burwood Council [2016] NSWLEC 1506 (per Dickson C), the Council had raised concerns about the practicality of policing compliance with the conditions of consent. Dickson C, at [40] referred to what Preston CJ said in Jonah at [35], where he concluded that the Court should approach its decision making with the view that conditions will be complied with.
Acting Commissioner Clay in Pocket Herbs and Produce Pty Ltd v Tweed Shire Council [2021] NSWLEC 1253 observed: "A final observation. Ms Paszkowski quite understandably complained of the need of her and potentially other neighbours to "police" the activities of the Applicant to ensure compliance and to inform the Council of a potential breach when necessary. The difficulty is that Councils rely upon complaints from members of the public to inform them of issues which require the Council's intervention. It will always be the case that neighbours of developments will have to observe and report if there are breaches of conditions of development consent so that a council can take any necessary action. It can be said, however, that the Applicant is undoubtedly now well aware of the consequences of a breach of the conditions of development consent." (Ms Paszkowski was a near neighbour of the applicant and in her submission had complained of noise impacts for a number of years).
In the present case, the Council is responsible for the management of the State Park and is thus itself a neighbour to the development. As has been made very clear throughout the proceedings, there are a large number of concerned citizens who take a close interest in the environment, and would, I have no doubt, continue to raise concerns with Council if there were to be possible breaches of the conditions.
I have no reason to doubt that it will be in the interests of the parties and the broader community that there is compliance with all the conditions.

Outcome

The concerns of the Respondent, and at least some of the concerns of the objectors, are addressed by the conditions agreed between the parties. These conditions incorporate requirements for a number of management plans. The conditions and the management plans that will apply to the development address the reduction and management of environmental impacts on and off site. The Applicant has agreed to conditions under which they will contribute to research on, and monitoring of, the state of streams in the Curl Curl Creek catchment, within the State Park. The results of these studies should contribute to the continuing development and application of the management plan for the State Park.
I consider that the application of the plans of management which form part of the conditions will not pose an unreasonable burden and that the planning principles established in Renaldo (at [54]) are satisfied.
Development consent should be granted for the proposal subject to the conditions of consent agreed upon by the parties.

Orders

The Court orders that: 1. Leave is granted for the Applicant to rely on the amended Development Application filed on 26 August 2021 which became Exhibit A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to DA 2020/0552 as agreed or assessed pursuant to s 8.15 (3) of the Environmental Planning and Assessment Act 1979. 3. The Applicant's written request prepared by Planning Ingenuity dated 31 March 2021 pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011 seeking to vary the height of buildings development standard in cl 40 (4) (a) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is upheld. 4. The Appeal is upheld. 5. Development consent is granted to DA 2020/0552 for demolition works, and construction of a seniors living development comprising 24 independent living units, a communal building, landscaping and associated works at 181 Allambie Heights Road, subject to the conditions in Annexure A 6. The exhibits are retained with the exception of exhibits C, 2 and 4.

Acting Commissioner of the Court (Annexure A)(455557, 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: 21 April 2022

(2018) 236 LGERA 256

(2006) 144 LGERA 408

(2007) 156 LGERA 446

At a glance

Court

Decision date

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Catchwords

Judgment (21 paragraphs)

Parties

Cases Cited (17)