Australian Nursing Home Foundation Limited v Ku-ring-gai Council

Land and Environment Court (NSW)|2018-10-31

The applicant's position - Contention 1

The applicant's written submissions dated 30 October 2018 address Contention 1 (AWS). They outline a primary position (AWS at [28] - [34]) and an alternate submission (AWS at [35] - [49]. They also annex a reply to the applicant's submissions.
They state that the controversy to be resolved is whether the description "biodiversity" is a "like description" for "conservation" and "environment protection" (the question). There is no need to resort to dictionary definitions. The words need to be considered within the framework of the chapeau to Sch 1 of the SEPP, namely: Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions ….
The critical issue in this case is whether the land is identified.
The applicant contends that the words must perform an identification function. It is not enough that they are a "like description", the word or expression must also identify the land. The ordinary meaning of "environment protection" and "conservation" are entirely different to the meaning of "biodiversity".

Applicant's alternative submission

If I do not accept its primary submission, the applicant makes the following alternate submissions.
The Dictionary to the KLEP defines "biodiversity" to mean: biodiversity or biological diversity means the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.
The expression "environment protection" is not defined in either instrument nor are the words "environment", "protection" or "conservation". In those circumstances, s 11 of the Interpretation Act 1987 provides words in instruments have the same meaning as in the Act or the relevant provisions of the Act, under which the instrument is made.
The KLEP and the SEPP are made under the EPA Act and the EPA Act defines "environment" in s 1.4(1) to mean: environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.
Relevantly, the applicant submits that the EPA definition is not limited to the natural world. And, if the definition of "environment" from the EPA Act is imported into the expression "environment protection", then that expression means the protection of all aspects of the surroundings of humans. Whereas "biodiversity" is an aspect of the surroundings of humans it does not cover all aspects. The concept of "environment" is much broader. The applicant submits that this is an important distinction between "environment protection" and "biodiversity" protection. Moreover, that the use of the word "environment" indicates an intention to provide a much higher level of protection - all aspects of the surroundings of humans rather than just the protection of "biodiversity".
The applicant further submits that this interpretation is confirmed when you consider the structure of the KLEP.
The KLEP uses the expression "environment protection" as a heading to the E zones in cl 2.1. The objectives of the E zones identify land by reference to a "high" or "special" level of values which are not limited to biodiversity (i.e. ecological, scientific, cultural, aesthetic). The structure in the KLEP is that the biodiversity mapping overlays the zonings and extends to land which is not zoned as "environment protection". The objectives of the E zone seek to protect those "high" or "special" values of the environment by limiting development allowed on that land. The E zones have identified the land as "environment protection" by the use of that heading.
Whereas cl 6.3 does not operate in the same way. Instead, it requires an investigation of the land through the development assessment process so as to identify the "biodiversity" values of the land and then determine how the impacts of the development on those values will be managed. The purpose of the clause is to assess "biodiversity" values. Not all "biodiversity" values are always present, hence the cl 6.3(a) uses the words "any" to indicate the particular aspect of "biodiversity" present.
And, while the Court in Pepperwood accepted that the objectives can be used to identify the land, those objectives need to use the words or expression in the Sch 1 of the SEPP or use "like descriptions". In accordance with Druitts, the applicant submits that you cannot split an expression "environment protection" and use only the word "protection". None of the objectives to cl 6.3 uses the expression "environment protection" or "protection". By just focussing on one word alone from the expression would in effect be adding, for example "protection" to Sch 1 of the SEPP, a new separate category. While the objectives in cl 6.3 use the word "protection" or like words they do not use "environment protection" and as outlined earlier the natural environment being a single aspect of the surroundings of humans is not a "like description" for "environment" which includes all aspects of human surroundings which could be natural or otherwise.
Additionally the applicant submits that the context does not support the view advocated by the Council. Schedule 1 to the SEPP includes the expression "coastal protection". In the event that the expression "environment protection" was construed as protecting all or any aspects of the surroundings of humans then it would also cover "coastal protection". Therefore, the context also suggests that the description "environment protection" refers to a much higher level of protection being all aspects of the surroundings of humans rather than protection of just one aspect being "biodiversity". When the SEPP intends to identify a single aspect of the environment, it does so specifically i.e. "coastal".
For those reasons the Court could not be satisfied that the word "biodiversity" is a "like description" for "environment protection".
Lastly, the applicant submits that the word "conservation" is not a "like description" for "biodiversity". And it seems the Council also acknowledges as much at [91] of its submissions where it concedes that "conservation" embraces additional matters and therefore is not a like term on that basis. Again, it is submitted that the Council's submissions are contrary to the textual approach as the word "conservation" is not found in cl 6.4 or the Map.
Accordingly, on that basis also the applicant submits that the result is that cl 4.6(a) of the SEPP is not engaged and therefore it follows that the SEPP applies to the land.

Consideration / Findings - Contention 1

I accept the applicant's primary submission and find that the identification function required by the chapeau to Sch 1 is performed by the Terrestrial Biodiversity Map which identifies the land in this case as "Biodiversity". There is no need to resort to dictionary definitions. The word "biodiversity" is not a "like description" or similar verbal description for "conservation" or "environmental protection" because when the meaning is considered in context "biodiversity" is an attribute of land. In this context, "biodiversity" has nothing to do with "environment protection" or "conservation".
Therefore, I find that the description of the land "biodiversity" on the Map under cl 6.3(2) does not satisfy the categories of the SEPP and the result is that the cl 4(6)(a) is not engaged and the SEPP applies to the land. For the reasons submitted by the applicant in its primary submission as summarised I accept that the identification of the land by the Terrestrial Biodiversity Map does nothing more than identify that part of the land, in this case, has "biodiversity" as an attribute.
I do not accept on a reading of the text contextually that the objectives in cl 6.3(1) perform an identification function for the purposes of Sch 1 of the SEPP. Rather, by operation of cl 6.3(3)(a), the objectives identify principles which relate to "any development on the land", and the provision requires the consent authority to be satisfied before the grant of consent that the development is consistent with the objectives of the clause (Pepperwood at [41]). The objectives in the context of this provision and the Act cannot be described as an identifying description of the land. And, while cases such as Punnett and Pepperwood support a textual approach to determining whether land can be categorised by reference to a "like description" of land as itemised in Sch 1 of the SEPP, the facts in this case can be distinguished, the issues are different and the focus of the examination is not on zone objectives.
As stated, the objectives in cl 6.3 are plainly not zone objectives but objectives which relate to the future development on the land. They are directly called up by cl 6.3(4)(a) but only when assessing a development application for the land and not for the purpose of identifying the land as identified already in the Map referred to in cl 6.3(2). They do not perform an identification function for the land.
I also agree that the Council's analysis has not had regard to the structure of cl 6.3. The identification function required by the chapeau to the Sch 1 is complete at cl 6.3(2) the balance of cl 6.3 is not engaged. For the purposes of Sch 1 of the SEPP, the relevant description identifying the land is done by the Map. The Terrestrial Biodiversity Map does not contain any "like descriptions" for "conservation" or "environmental protection". The Map is part of the KLEP but the task of identification required by the chapeau of Sch 1 to the SEPP needs to focus through the lens of the instrument. The Map has no function other than to serve the purpose of the instrument.
In the alternative, if that approach is found to be incorrect I accept the applicant's analysis over that presented by the Council. In Whittaker, the Court had to determine whether the description "geotechnical hazard" as used in the Pittwater Local Environmental Plan 2014 is a "like description" for the expression "natural hazard' as used in Sch 1, item (i) of the SEPP. The Court found on the facts that the expression was not a "like description".
Following the principles relevant to the construction of an environmental planning instrument ("EPI") as set out at [28] of Whittaker, I have decided, on the facts of this case, that the expression "biodiversity" is not a "like description" in the sense of a similar description as "environment protection" or "conservation" for the reasons outlined by the applicant as summarised earlier. None of the objectives to cl 6.3 use the expression "environment protection" and it is plain that the expression cannot be split: Druitts. That is, as the applicant submits, you cannot discard the word "environment" and use only the word "protection" to found an argument of like description. To do so would be to add the word "protect" to Sch 1 as a separate category.
Furthermore, when you consider the meaning of the word "environment" as defined in cl 1.4(1) which encompasses all aspects of surroundings of humans it is not confined to the natural environment and therefore cannot be a "like description" for "biodiversity" - which, in this context, only concerns the natural environment. When read in context and the purpose in mind, Sch 1 to the SEPP includes the separate expression "coastal protection"; and therefore, if "environment protection" was construed as protecting all aspects of the environment, then it would necessarily cover the separate expression "coastal protection" and this separate category would have no work to do.
Accordingly, it is my considered opinion that the text, in context and with the purpose in mind, means that the description "environment protection" refers to a much higher level of protection than just "biodiversity". In the circumstances, it cannot be a "like description" even when affording a wide meaning to that expression as being something more than the "same" or "identical" but encompass[ing] the concept of similarity: Whittaker at [43] citing Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 at 71 B per Holland J.
With respect to "conservation" in its written submissions, the Council expresses some reservation as to whether this word is a "like description" (CWS at [91]) and I appreciate why. Nowhere in the objectives in cl 6.3 or the Map is the word "conservation" found. Accordingly, I do not accept the word "conservation" to be a "like description" for "biodiversity" for the purposes of Sch 1 of the SEPP for the reasons articulated by the applicant in its alternate submissions.
Therefore, the answer to Contention 1 is that the SEPP applies to the land. The text relied upon in cl 6.3 or the wording on the Map does operate to identify the land and that, in my opinion, is the end of the inquiry. Alternatively, I do not find that the word "biodiversity" is a "like description" of the words found in Sch 1 (a) to (m) in particular the words relied upon by the Council (d) "environment protection" and (b) "conservation".

The Council's position

The second contention agitated by the Council was made an issue in the proceedings following an interlocutory hearing on 27 August 2018: Australian Nursing Home Foundation Limited v Ku-Ring-Gai Council [2018] NSWLEC 131. The applicant had applied to have the question raised by Contention 2 separated out from the principle hearing but Pepper J declined to do so and, instead reformulated the question for determination in this hearing, namely: "Whether, properly construed, cl 26 of the SEPP, when read with cl 15 of the SEPP, is able to be varied by the provisions of the LEP including cl 4.6."
The relevant provisions are set out below:
The aims of the SEPP are set out in cl 2(1). How those aims are to be achieved is set out in cl 2(2) of the SEPP. 2 Aims of Policy (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.
Clause 5 provides: 5 Relationship to other environmental planning instruments (1) This Policy repeals State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability. (2) Despite anything to the contrary in this Policy: (a) a consent authority may not grant consent to a development application made pursuant to Chapter 3 in relation to the land referred to in clause 4 (9) if the proposed development does not comply with the requirements of clause 65 (5) of Sutherland Shire Local Environmental Plan 2000 relating to development for the purposes of seniors housing, and (b) the provisions of clause 65 (5) of Sutherland Shire Local Environmental Plan 2000 relating to development for the purposes of seniors housing prevail over the provisions of this Policy to the extent of any inconsistency. Note. Clause 7 (2) (a) of Sutherland Shire Local Environmental Plan 2006 continues the application of Sutherland Shire Local Environmental Plan 2000 to the land referred to in clause 4 (9). Clause 65 (5) of Sutherland Shire Local Environmental Plan 2000 (when read with clause 4 in Part 1 of Schedule 8 to that Plan): (a) applies the development standards in Parts 4 and 7 of Chapter 3 of this Policy to development for the purposes of seniors housing on the land referred to in clause 4 (9), and (b) provides for those development standards to prevail to the extent of any inconsistency with development standards set out in Part 1 of Schedule 8 to the Plan for such development on that land. (3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency. (4) This Policy does not affect a provision in another environmental planning instrument that relates to the demolition of a heritage item.
Chapter 3 of the SEPP contains all of the clauses prescribing development standards. The objective of that Chapter is defined in cl 14 as follows: 14 Objective of Chapter 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.
Clause 15 of the SEPP falls within Chapter 3. It is a key clause, because it describes the function of Chapter 3 of the SEPP 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.
Clause 16 of SEPP works alongside and in conjunction with cl 15. Clause 16 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.
Relevantly, cl 26 of the SEPP provides as follows: 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to: (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. (2) Access complies with this clause if: (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area) - there is a public transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or (c) in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area) - there is a 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 during daylight hours at least once 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 transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). 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.
The Council's position is set out in its written submissions dated 23 October 2018 which were also addressed orally. Shortly stated, the Council contends that cl 15 of the SEPP is the clause which sets aside the prohibition on the carrying out of a seniors living development in the R2 zone. Although, by setting aside the prohibition under the KLEP, the Council submits cl 15 is conditional upon the development strictly complying with the requirements of the SEPP including cl 26. The Council argues that neither cl 4.6 of the KLEP or SEPP 1 is available to vary cl 26 because the clause operates as a prohibition. And, if cl 26 was varied the development would not be in accordance with this SEPP as required by cl 15. To conclude otherwise, is to fail to give effect to cll 2(2)(a) and 16 of the SEPP and ignore the prohibition under the KLEP. In these circumstances, the prohibition by operation of cl 2.3 in conjunction with the land use table under the KLEP is not displaced (CWS at 16 at [65]).
The Council submits that this approach does not overlook the express terms of cl 4.6(2) of the KLEP "development consent may subject to this clause be granted for development even though the development would contravene a development standard by this or any other environmental instrument". However in recognising that cl 4.6 has a legitimate role to play in permitting variation of a development standard where the development is permissible, it does not apply where the development is prohibited. As cl 26 is properly characterised as a prohibition and the development does not comply with the prohibition, it is prohibited.
At [5]-[6] of the CWS the Council asks me to focus on whether the type of development under consideration is permissible with consent under the provisions of Chapter 3 of the SEPP despite being prohibited under the KLEP. Applying basic principles of statutory construction, it submits that cl 26 of the SEPP sets out development criteria or standards in mandatory terms, to the effect that the consent authority must not grant consent under the SEPP if the development does not comply with the standard or criterion.
According to the Council the reason why cl 26 of the SEPP operates as a prohibition rather than a development standards is because it satisfies the test of having a zoning function in circumstances where the proposed development is prohibited under the KLEP. The clause sets out site related requirements containing provisions relating specifically to land expressed in mandatory terms. That is, it defines a characteristic of the land without which the development is prohibited. It is part of the definition of permissible development and is not an identified development standard that can be varied under cl 4.6 of the KLEP. On that basis, the Council submits that the discourse in relation to what constitutes a development standard does not assist the resolution of the point of construction it raises, namely, whether the development of the type under consideration is permissible with consent under the provisions of Chapter 3 of the SEPP, despite being prohibited by the KLEP (CWS 3 at [5]).
In the alternative, if one engages with the approaches of the Court of Appeal to determine whether cl 26 is a prohibition or development standard, the zoning function (essential element approach) is favoured in identifying whether a particular provision is a development standard; Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 ("Agostino") per Tobias at [43]-[52] with whom Giles JA agrees) (CSW 3 at [7]). In reaching that conclusion, the Council's written submissions start with the definition of a development standard in s 1.4 of the EPA Act and then work through the main authorities which dealt with the meaning of development standard including: Blue Mountains City Council v Laurence Browning (2006) 150 LGERA 130; [2006] NSWCA 331 ("Laurence Browning"); North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 at 232-233 per Mahoney JA; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 ("Poynting") - before returning to an analysis of the provisions of the SEPP.
In that regard, the Council submits that cl 2(1) sets out the aims and cl 2(2) identifies how the aims are achieved. Chapter 3 of the SEPP contains all of the clauses prescribing development standards with the objective of the chapter identified in cl 14.
Clause 15 is then highlighted as it falls within Chapter 3 and is said to be a key clause because it describes the function of Chapter 3.
Relying on the accepted rules of statutory construction as already identified for the purposes of Contention 1, the Council then construes the clause's text, context and purpose with emphasis on the word "if" in cl 1.
The Council submits that in circumstances where the development for the purpose of seniors housing is prohibited from being carried out under cl 2.3 of the KLEP, the effect of cl 15 of the SEPP is that such development will be permissible under Chapter 3 of the SEPP despite the development being prohibited under the KLEP, but only "if" the development is carried out in accordance with the SEPP.
According to the Council, the plain language of cl 15 must be accorded due weight in the task of construction as the text in the statute is the surest guide to intent: Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47].
Applying the ordinary meaning to the word "if" when used in cl 15, the Council submits that it introduces a condition which must be satisfied in order for development to be permissible under Chapter 3 of the SEPP. There is a precondition in cl 15 (CWS 11 at [34]-[35]). It is further submitted that the context of cl 15 and the purpose of Chapter 3 and the instrument as a whole support the view the Council takes about how cl 15 should be interpreted.
Clause 15 is said to be a provision which describes the development that Chapter 3 allows. And, by specifying the criteria prescribed in mandatory terms in the SEPP, it still remains the position that Chapter 3 creates opportunities for the development of housing for seniors and persons with disabilities and thus the objective set out by cl 14 may be achieved. Clause 15 defines the opportunities that Chapter 3 creates and it defines the opportunities by limitation (CWS at 11 at [38]). This construction, it is submitted, accords with what cl 2 of the SEPP says about the aims of the SEPP and how the aims are intended to be achieved. That is, the aims in cl 2(1) of the SEPP are to strike a balance to encourage the provision of housing (including residential care facilities). "…On the one hand to seek to avoid bad planning outcomes, including poorly designed development and development that is not unsuitably incongruous in its context or locality" (CWS at 12 [41]).
Additionally, the Council submits "...of particular significance in considering the balance that the SEPP seeks to achieve, and in construing its effect, is cl 2(2)(a) of the SEPP". The clause provides: 2 Aims of Policy (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…
This clause, according to the Council, in terms "fortifies the proposition that flows from the language of clause 15 that a prohibition under an LEP against the carrying out of proposed seniors housing development will be set aside by the provisions of Chapter 3 of the SEPP only if the development meets the development criteria and standards specified in this policy" (CWS 12 at [44]).
Additionally, the language of cl 2(2)(a) of the SEPP supports the proposition that the development will not be carried out "in accordance with this Policy" within the meaning of cl 15 if the development does not meet the development criteria and standards specified in the SEPP. Furthermore, the applicant believes that cl 16 of the SEPP operates harmoniously with cl 15. By stating that development "allowed by this Chapter" may be carried out with the consent of the Council, cl 16 is naturally to be read as referring back to cl 15 in identifying what is allowed under Chapter 3 (CWS 12 at [45]).
The applicant emphasises that the pre-condition to permissibility set out in cl 15 is expressed in terms "if the development is carried out in accordance with this Policy". If the proposed development does not accord with a development standard expressed in mandatory terms in the SEPP, the development cannot be "carried out in accordance with this Policy" within the meaning cl 15. The Council contends that the SEPP is beneficial and facultative but that does not give "carte blanche" permission to override a prohibition in an environmental planning instrument.
Whilst acknowledging disunity in the approach of the Court of Appeal in identifying whether a particular provision is a development standard, the Council prefers the reasoning as I said in Agostino. Clause 26 is properly characterised as a prohibition because it satisfies the test of a zoning function or essential element.
Chapter 3 operates as an exception to the general prohibition on housing for seniors in the KLEP: Agostino at [44]. Clause 26 is one particular zoning criteria in Part 2 of Chapter 3 which is an essential consideration in determining whether the development is permissible. To support that proposition, the Council refers me to Agostino at [45] and [46].
Chapter 3 is divided into numerous parts and the Council submits as notable that Parts 4 and 7 refer expressly to "development standards".
Part 2 is entitled "Site-related requirements" and contains provisions relating to land, expressed in mandatory terms. These include location and access to facilities (cl 26), bush fire prone land (cl 27) water and sewer (cl 28) - all matters which the Council argues are essential considerations for the seniors housing development having regard to the objectives of the SEPP.
Clause 26 sets a prescribed distance for the location of and access to facilities such as shops, banks etc. This is expressed in mandatory terms and may be regarded as an essential condition.
The Council submits that the essential quality of cl 26 is demonstrated by its nexus with the objective in cl 2(1)(b) "to make efficient use of existing infrastructure and services". In accordance with Agostino, it is only after the development is identified as permissible that the development standards controlling how that identified development is carried out becomes relevant.
Relevantly, at the point at which one addresses cl 26, the development is not permissible. Only if compliance with the mandatory terms of cll 26, 27 and 28 may it overcome the prohibition in the KLEP. Then the expressly described development standards come into play.
The Council submits that I should not follow the decision of Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 ("Principal Healthcare") for two reasons: 1. The proposed development in those proceedings was permissible in the zone under the relevant LEP. Therefore, the provision of Chapter 3 did not need to be considered against the underlying prohibition in the LEP in accordance with the reasoning as outlined in this case. 2. The two step process adopted by Robson J has been rejected by the Court of Appeal as being conductive to legal error (Laurence Browning per Basten JA at [101]-[103] and per Ipp JA at [15]-[20]).
Furthermore, the Court would not follow Moore J in Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 ("Pathways") because: 1. The decision deals with a markedly different provision in cl 40(4) of the SEPP in Part 4 of the instrument which is expressly "development standard". 2. Additionally, the Court did not determine whether or not the provision was a development standard or prohibition by reference to the decisions of the Court of Appeal referred to above and appears not to have taken those decisions into account (Footnote 15 CWS at [64]).
In those circumstances, cl 4.6 cannot make the development permissible with consent by allowing a development standard with which the development does not comply to be varied.

The applicant's primary position

The applicant contends that the effect of the Council's construction of cl 15 is that no development could be carried out pursuant to the SEPP unless the proposal strictly complied with every single provision of the SEPP. According to the applicant, the real issue for determination is whether there is any inconsistency between cl 15 of the SEPP and cl 4.6 of the KLEP. If there is no inconsistency, then cl 4.6 permits the grant of consent notwithstanding the contravention of cl 26. (Although, it identifies that the Council does not deal with this issue of inconsistency in its submissions). Despite that the applicant's primary position is that I do not need to delve into the contest as to whether cl 26 of the SEPP operates as a prohibition or development standard if I accept that the requirements of cl 26(2) of the SEPP, that services and facilities are "located at a distance of not more than 400m from the site" means that they could be located on the site.
However, if I do not accept that proposition, then it submits that any non-compliance with the standard in cl 26 of the SEPP can be varied by operation of cl 4.6 of the KLEP having regard to the reasoning of the Court in the decisions of Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73; Georgakis v North Sydney Council (2004) 140 LGERA 379 ("Georgakis") at [42]-[43] particularly; followed in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Robson J at [69]-[75].
I will deal with the applicant's primary position first.

Does the development comply with cl 26 of the SEPP?

The applicant has addressed this matter of compliance with the terms of cl 26 in separate written submissions dated 2 November 2018. The issue as to whether access to requisite services and facilities within appropriate limits is also addressed by the parties' planners, Mr Grech and Mr Goodwill in their joint report (Exhibit 5) and later orally in Court. This was the only issue between the planning experts; in all other respects, they were in complete agreement.
The applicant submits that the text and structure of cl 26 is important. Clause 26(1) identifies three categories of facilities and services that the residents of the proposed development need to have access. And, as the consent authority, the Court needs to be satisfied of that fact. The clause also mandates that the access complies with subcl (2).
Clause 26(2) then identifies three possible means of access to those facilities (Noting that the third way is not relevant in this case as the site is located within the Greater Sydney area). Clause 26(2)(a) requires that the facilities and services be located at a distance of not more than 400m from the site by an accessible pathway of a particular gradient.
Clause 26(2)(b) provides an alternative by use of the word "or" that the site be located at a distance of not more that within 400m of a public transport service that will take those residents to a place that is within 400m from the facilities.
The applicant's primary position is that the requisite facilities are provided on site by the development. This satisfies cl 26 because the requisite facilities being provided on the site are not more than 400m from the site and are accessible.
The requisite facilities and services are outlined in Exhibit C and (summarised again in Exhibit K the cl 4.6 written request) and referred to in the joint planning report (Exhibit 5). Mr Grech, the applicant's planner, sets out his view about the requisite facilities at paragraph [28] and the Council's planner, Mr Goodwill, sets out his view at paragraph [29].
The applicant submits that the starting point of my consideration of cl 26(1) is to focus on the intended residents of the particular proposal. Mindful, in this case, that the proposed development is for a "high care" facility which is made plain in the DA and by draft Condition 98 limiting the facility to residents who require "high care".
Ms Louie (who is the chairperson of the applicant) has provided evidence in her affidavit based on her experience with the applicant (which it is accepted, operates numerous high care nursing homes) of the types of facilities and services that may be reasonably required by the intended residents under subcl 26(1)(a), (b) and (c). In her evidence, Ms Louie explains what constitutes "high care" of residents at paragraphs [11] - [13] of her affidavit (Exhibit C) and what is available in the referenced nursing homes in terms of services and facilities. At paragraph [21], she records the results of a general survey undertaken in the facilities to find out the needs of residents at existing high care facilities with which she is involved. The survey records that:

None of the residents use an opal card with 99% not owning an opal card;
None of the residents were assessed as capable of travelling on a public bus independently or assisted;
Two of the residents are capable of walking a distance of 400m with assistance;
None of the residents are able to undertake activities such as shopping, banking and external doctors visits independently;
All residents are satisfied with the level of service provided at their facility;
None of the residents require services that are not currently provided at the facility.

The applicant submits on the evidence of its planner, Mr Grech, that the underlying objective of cl 26 is "to ensure that residents of seniors living housing permitted by the SEPP will have reasonable access to basic facilities and services". Mr Goodwill did not disagree. However, these experts also acknowledge in their joint report that this is ultimately a legal matter of interpretation.
Mr Grech also states at paragraph [28(c)] of the joint report that the objective of the SEPP is to create opportunities for the development of housing suited to different categories of residents ranging from independent to frail. In that regard, his evidence is that the manner of access to services would vary depending upon the type of resident expected to reside in the particular development. In Mr Grech's assessment, as stated at paragraph [28(f)] of the joint report, he is of the opinion, having regard to Exhibit C, that access to all requisite services in cl 26(1) will be provided onsite and that the accessibility criteria to access those services will be met.
The applicant submits that Mr Goodwill accepted that the services offered on site as evidence in writing in this case satisfy cl 26(1)(a) apart from a bank which he believes is "a place" (T40:25-50, 41:5-50). However, that still did overcome the locational criteria - a distance requirement in cl 26 to which he believes the clause is directed. In Court, Mr Goodwill said "…in terms of this clause I believe that they are referring to a place, and that goes to the fact that access complies with the clause through complying with the distance requirement" (T41:20).
With respect to access to "bank service providers" referred to in cl 26(1)(a), and defined in cl 26(5), the applicant submits that the term as defined in the SEPP means a bank, credit union or building society or any post office that provides banking services. In this case, the written evidence at Exhibit C, Tab 6, folios 330-331 is that Westpac has offered access to banking services at the development site in the form of mobile bankers visiting the site on a regular basis, if needed and/or through digital channels by a Westpac representative who can communicate in their language. (T38:20-50).
Mr Goodwill does not accept that the written evidence outlining the services to be provided on site can satisfy cl 26. At paragraph 29(b) and (c) of his evidence in Exhibit 5, he takes issue with the provision of the services required by cl 26(1)(b) being onsite. He relies on Appendix 3 to the Guidelines (Department of Infrastructure, Planning and Natural Resources, A guide for councils and applicants - Housing for seniors or people with a disability (May 2004)) as supporting his view that the clause is directed to requiring access to community information services, libraries (home and branch) and council staff. As the development does not have a public library or access to council staff therefore it does not comply. Nor does the development have a theatre, public park, swimming pool, seniors citizens centre, bowling club or neighbourhood centre. (Noting that the application does in fact provide access to a theatre onsite (DA 03)).

Consideration / Findings - Contention 2

The Council submits that the site is within the Greater Sydney statistical area and that cl 26(2)(b) applies and based on the facts of this case access will only comply with the clause if there is a public transport service available to the residents who occupy the proposed development in accordance with subcl (2)(b)(i),(ii) or (iii). This is said to be consistent with the aims of the SEPP cl 2 to make efficient use of existing infrastructure and services.
I accept that to be the case, (without a variation of the standard in cl 26 under cl 4.6 of KLEP) were it not for the fact that access to the requisite services and facilities will be provided on the site of this development for the reasons submitted by the applicant as summarised. I am satisfied by the written evidence before me (in Ms Louie's affidavit (Exhibit C) and detailed in Exhibit K that the residents of the proposed development will have access that complies with subcl (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
The evidence supports a finding that the facilities and services referred to in subcl (1) are located at a distance of not more than 400m from the site of the proposed development because they are provided on the site.
In coming to this view, I do not accept Mr Goodwill expert assessment as expressed in Court (T39:20), and in his written evidence in Exhibit 5 at [29] that a bank or post office needs to be "a place" in order to comply with the distance requirement. Relevantly, cl 26(1) by its terms does not refer to a bank or post office as "a place". In that regard, Mr Goodwill's opinion does not reflect the text of the clause in the context of the whole or accommodate the intended demographic of this high care facility which is a relevant consideration. Clause 26(1) refers specifically to "residents of the proposed development" - (a demographic which is reflected in the DA and Condition 98). The SEPP permits numerous forms of seniors housing and the particular proposal in this instance is a high care residential facility: Principal Healthcare at [51].
In my assessment of the evidence, the provision of services on site by visiting professionals is not only a good planning outcome, as it addresses the objective to provide development in a manner suited to residents who are both mobile, independent, active and frail but also satisfies cl 26(1). For those more agile, there will be a regular community bus accessed from the site to the Gordon Centre where community services are located (cl 26(1)(b)). The clause does not specify the nature of the community services which must be accessed and I accept that the checklist in the Department of Planning Guide acknowledges that not all information listed will be relevant to every proposal (pp 21 and 30 of Appendix 3).
In order to determine the requisite services and facilities for this development, I accept that the best available evidence is that provided by Ms Louie in her affidavit and I understand the development will provide access to the facilities and services in accordance with her evidence at the site. The particular facilities and services are identified in detail in Exhibit C. The applicant has also agreed to the imposition of any reasonably drafted condition from the Council which obliges the provision of such services and facilities at the site (T59:1). The offer to accept conditions was in response to the Council's concern that the Westpac Gordon bank branch may close in the future and the services secured onsite would terminate (T58:29). I do not believe such conditions are required in this case given that it is specified in the development application that the proposal is for a high care facility. In any event, the residents of this development, if approved, would be in no different position had they been given access to the same services from a bus stop located within 400m by a level path or located next door if that branch of Westpac closed.

Development standard - Clause 4.6 request

Against the possibility that the applicant's submission might not be accepted, it filed a request under cl 4.6 and a SEPP 1 objection in compliance with the development standard in cl 26(2)(b). And, as neither party addressed the SEPP 1 objection in any detail in this case, I do not propose to deal with it.
Before I deal with the cl 4.6 written request in Exhibit K, I need to address the Council's submissions as summarised at [99] and explain why I agree with the applicant that cl 26 of the SEPP is a development standard amenable to variation under cl 4.6 of the KLEP. Relevantly, this issue is comprehensively addressed in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 where Robson J found at [69] to [75] the reasoning of McCellan CJ in Georgakis v North Sydney Council (2004) 140 LGERA 379 persuasive and followed it to find cl 26 of the SEPP to be a development standard amenable to variation under cl 4.6 of the LEP in that case.
The KLEP in this case contains a cl 4.6 variation clause in the same terms as that considered in Principal Healthcare, and as I said, the case was concerned as to whether cl 26 of the SEPP was a development standard or prohibition. Despite that authority, the Council has submitted that the applicant cannot rely on cl 4.6 in this case to vary cl 26 of the SEPP because the provision operates as a location criteria and in effect is a prohibition. This position is at odds with the decision of Robson J with whose reasoning I respectfully agree.
The applicant submits cl 26, in the context of the SEPP as a whole, does not prohibit the development because cl 15 and cl 16 do not make any reference to cl 26. Clause 10 defines seniors housing and also makes no reference to cl 26. Clause 4 does not identify land which is located more than 400m from services as land to which the SEPP does not apply.
Clause 26 clearly specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development because it sets out a requirement or standard in respect of the matters contained in s 1.4(1)(a), (c) and (m).
Clause 26 is plainly a development standard and this view is supported by the reasoning in Georgakis at [40]-[46] which dealt with an identical provision under an older version of the SEPP as accepted by the Court in Principal Healthcare.
Whilst I acknowledge that the two step process in Poynting received some criticism in the decision of the Court of Appeal in Laurence Browning, nonetheless, the Poynting approach remains the approach generally employed by the Judges of this Court: Wilson Parking 1992 Pty Ltd v Council of the City Of Sydney [2014] NSWLEC 12 at [14]. In my assessment, there is no reasonable basis put forward in this case by the Council to depart from the recent decisions of the Judges of this Court. The fact that the LEP at issue in Principal Healthcare permitted the development and that the Court was not taken to the construction put forward in this case by the Council (as summarised, which I reject for the reasons outlined by the applicant) is not a basis to displace the Court's consideration in Principal Healthcare. The decision of Robson J on 2 December 2017 involved the determination of a separate question of law as to whether or not cl 26 of the SEPP is a development standard amenable to cl 4.6 or a prohibition. The answer was "Yes" because it was not a prohibition (at [77]-[78]).
In short, the clause was analysed in the context of the whole instrument and found to be a development standard. There is no proper reason why I should depart from the law as recently pronounced and followed in Pathways - (accepting that Moore J's decision focused on cl 40 of the SEPP and therefore is not directly on point). At [52] of the judgment, Robson J states: "… properly construed, cl 26 does not act to prohibit development. Rather it serves the objective of Ch 3 set out in cl 14 of SEPP (HSPD), which is partly to ensure that 'housing is located…in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail'. The locational requirements for 'independent, mobile and active' seniors, who are … more likely to travel to attend shops, banks and other facilities, are naturally different to 'those who are frail' and cannot independently visit such locations. As such, whilst the locational criteria in cl 26 of SEPP (HSP) may be suited to those who reside in self-contained dwellings, they are not necessarily suited to 'frail' persons who reside in residential care facilities." Accepting that cl 26 is a development standard, there is no contention in this case that there is any inconsistency between cl 26 of the SEPP and cl 4.6 of the KLEP - which by its terms applies to all environmental planning instruments.

Clause 4.6 written request

The development standard to which this cl 4.6 request seeks to vary is cl 26 of SEPP (reproduced at [103] above).
The terms of the applicant's cl 4.6 written request were prepared on or about 13 January 2017 and founded on the authorities at that time.
And while the parties have addressed the question as to whether cl 26 is a development standard neither party in final submission addressed the request. In particular, they did not address cl 4.6(3)(a) and (b) nor the conclusion I should reach by reference to cl 4.6(4)(a)(i)and (ii) based on the current case law. I am told that the planners support the cl 4.6 written request but that support cannot usurp the obligation of the Court to consider the request's conformity with the provisions of cl 4.6. That is particularly relevant given the recent jurisprudence directed to the manner in which the assessment of a cl 4.6 request is to be made.
Unaided by the submissions of the parties, I have decided based on cl 4.6 that the written request should be approved for the following reasons.
Clause 4.6 provides as follows: (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. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note. When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4.
Clause 4.6(4) of the KLEP establishes preconditions that must be satisfied before I can exercise the functions of the consent authority and can exercise the power to grant development consent under cl 4.6(2): (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13] ("Initial Action")).
In that regard, 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 the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and 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.
Clause 4.6(4)(b) requires that I am 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) LEC Act, but should still consider the matters in cl 4.6(5) of the KLEP (Initial Action at [29]).
The written request sets out the terms of cl 4.6 of the KLEP and cl 26 of the SEPP.
It then states that cl 26 requires access to requisite services and facilities in cl 26(1) located at a distance of not more than 400m from the site of the proposed development by accessible path or that public transport should be available within 400m of the site along a suitable pathway The position of the applicant is that through the provision of services and facilities within the development that cl 26(2)(b) has been satisfied.
The request records that the development does not comply with the standard because the site is located 526m from Gordon Centre where all services referred to in cl 26 are available and a similar distance to the nearest bus stop and Gordon Train Station.
In the absence of a stated objective of cl 26, the written request states that the underlying objective of the standard in cl 26 - "is to ensure that the future residents of the development will have access to all services and facilities required by the clause that they would reasonable require". In that regard, the services and facilities provided onsite including a private community bus available to residents as required and with as much greater frequency and convenience than the public transport achieves the underlying objective of the standard in cl 26(2)(b)(ii).
And, given that the underlying object of the standard is achieved by the provision on site of access to services and facilities together with the community bus then the written request states that it is unreasonable or unnecessary to require strict compliance with the locational requirement in cl 26(2)(b)(ii) in the circumstances of this case where the underlying objective of the standard is met. The submission is that strict compliance with cl 26 is unreasonable or unnecessary in circumstances where this secure high care facility has a high proportion of frail residents who are unable to access facilities and services independently, even if a public bus was available to take them to local services within 400m of the site in accordance with cl 26(2)(b) such services would not be accessible by the future residents due to their fragility and inability to travel independently on public transport. In short, they would not use the public bus. Additionally, the communal 21 seater bus in any event will be available to residents when required to access services and facilities outside the site.
The applicant seeks to rely on the first and second test in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] ("Wehbe") to justify the contravention of the development standard in cl 26(2)(b) of the SEPP by demonstrating that compliance with the standard is unreasonable or unnecessary in the circumstances of the case - which are two ways of demonstrating this as confirmed in Initial Action at [17]-[21]. After referring to the five tests in Wehbe, the written request at p14 sets out the following two tests it relies upon: 1. the objectives of the standard are achieved notwithstanding non-compliance written standard; and 2. the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.
The written request then states at p15: "With respect to these tests outlined in Wehbe, we submit that it is unreasonable and unnecessary to strictly comply with clause 26 for the reasons related to (a) and (b), which in this case are intrinsically related to each other due to the nature of the proposed development; the degree of fragility of the future residents; and, their inability to safely access external services independently."
First, I accept after a consideration of the text in context that the underlying objective of cl 26 as stated in the written request (at [177] above). On that basis, I am satisfied as required by cl 4.6(4)(a)(i) that the applicant's written has adequately addressed 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 at the site. Furthermore, that compliance is unreasonable or unnecessary by reason of the fact that these high care residents will not likely use the public bus if it were available and that access to the requisite services and facilities are provided nevertheless on the site and/or by the community bus: Wehbe.
Next, I must be satisfied that the written request has adequately addressed the matters required to be demonstrated by subcl (3)(b) namely: (b) that there are sufficient environmental planning grounds to justify contravening the development standard
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]).
The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Accordingly, the environmental planning grounds advanced in the written request must be sufficient and 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]).
The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(4)(a)(i) (Initial Action at [25]).
The applicant's written request states several environmental planning grounds to justify the contravention of the standard in this particular case in order to adequately address the matters required to be demonstrated by cl 4.6(4)(i) ( subcl (3)(b)). The grounds relied upon include: 1. All services and facilities reasonably required by the residents will be available within the facility or where external services are required which cannot be delivered on site then appropriate arrangements will be made for accompanied trips; 2. A communal 21 seater bus will be available to residents and accompanied trips will be organised to external services providers; 3. Any non-compliance with the standard and the provision of services within the development does not result in any significant adverse environmental impacts on surrounding properties or the locality. The facilities and services provided onsite are designed so as not to impact on neighbouring residents; 4. The proposed development fully satisfies the underlying intent of cl 26 which is to provide appropriate services and facilities to residents taking into account the type of housing proposed and the level of independence of the resident which is a concept acknowledged in Principal Healthcare; 5. The provision of services within the development will result in less traffic generation; 6. The proposed development is a better planning outcome; 7. The kitchen and laundry services will be located underground where any impacts on neighbouring properties may be satisfactorily mitigated; 8. The proposed development will make a significant contribution to the availability of this specialised type of accommodation within the Council area and will promote the social wellbeing of the community. The proposed development is considered to be consistent with the objects of the Act which, as relevant to this proposal, are: 1. to encourage: 1. the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, 2. the promotion and co-ordination of the orderly and economic use and development of land, 3. the provision and maintenance of affordable housing.
I am satisfied that the written request has adequately addressed the aspect of the development that contravenes the development standard on grounds that can properly be described as "environmental planning grounds" within the broad meaning identified by his Honour in Initial Action at [23]. In that regard I rely on item 8 of the environmental planning grounds identified in the written request referred to above at [186] and those identified at p 22 of the written request and reproduced at [192] below. Collectively, these grounds allow me to form the requisite state of satisfaction required by cl 4.6(4)(a)(i). In summary, by providing services onsite within the development will be consistent with the objects of the Act by promoting the orderly and economic use of the land (ground 8).
Accordingly I am satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify the contravention of the development standard and that those reasons are adequately addressed as required by cl 4.6(4)(a)(i). Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone
The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
In this case, I am satisfied that the proposed development will be in the public interest despite the contravention of the standard because, in my assessment of the evidence in this case, it will be consistent with the underlying objective of cl 26 of the SEPP (for the reasons addressed in relation to subcl (3)(a) which I do not need to repeat), and consistent with the following objectives of the zone within which the development is proposed: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
With respect to the development's consistency with the zone objectives, I rely on the grounds in the written request at p22, namely:

The proposed development includes the retention and adaptive reuse of one of the three existing dwellings. This is consistent with the third zone objective providing housing that is compatible with the existing environment and built character of Ku-ring-gai;
The majority of the new development is setback behind the front setback of the retained building. This is consistent with the third zone objective providing housing that is compatible with the existing environment and built character of Ku-ring-gai;
The form of the new buildings are consistent with the existing built from in terms of the two storey construction with pitched roofs, albeit low pitched roofs to assist in mitigating any perceived massing issues. This is consistent with the third zone objective providing housing that is compatible with the existing environment and built character of Ku-ring-gai and zone of objective 1;
The proposed development is orientated to be perpendicular to the street and maintains the prevailing low density street rhythm. This is consistent with the third zone objective providing housing that is compatible with the existing environment and built character of Ku-ring-gai and zone of objective 1;
The side walls of the development are satisfactorily modulated and articulated to minimise potential massing impacts associated with the length of walls to be consistent with the articulation requirement for a dwelling house under the Council's DCP. This is consistent with the third zone objective providing housing that is compatible with the existing environment and built character of Ku-ring-gai and zone objectives 1 by providing the housing needs of the community within a low density residential environment;
No significant adverse impacts will be introduced on vegetation of significant biodiversity and ecological values. On the contrary, the core area at the rear of the site will be improved and retained in perpetuity by way of a covenant and a Vegetation Plan of Management. This is consistent with the third zone objective provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai;
Significant trees including the cedar tree in the front of No. 25 Bushland Road and the line of Jacaranda trees will be retained and protected during construction, thereby protecting the streetscape and landscaping qualities of the site. This is consistent with the third zone objective provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai;
The garden setting of the development is consistent with the R2 zone context. This is consistent with the third zone objective providing housing that is compatible with the existing environment and built character of Ku-ring-gai and zone objectives 1 by providing the housing needs of the community within a low density residential environment.

Additionally, I am satisfied, based on the evidence received during the hearing, that the development will be consistent with the second objective of the zone by providing facilities and services to meet the day to day needs of 84 "high care" people who are members of the community. I am also satisfied that the development will provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai based on the evidence of Mr McDonald and my understanding as it accords with my observations of the site and the existing environmental and built character of this part of Ku-ring-gai. In my assessment, existing view corridors will be sufficiently proximate to the Heritage Item to allow public views from the key vista opposite the site and the streetscape more generally. The built form of the development will not compete with the Heritage Item and its garden curtilage but will sensitively harmonise with the item and the streetscape due to the retention of more significant trees now incorporated in the proposal and the sensitive redesign of the development since lodgement of the DA. For the reasons articulated by Mr McDonald, the Chinese Elm (Tree 15) and the Tuckeroo (Tree 23) do not need to be retained, as Ms Hay suggests, in order for the development to sensitively harmonise with the garden and landscape elements so as to present a landscape setting in a generously proportioned garden and yet have a sense of depth to the rear of the property.
The contravention of cl 26 does not hinder the ability of the proposal to achieve the objectives of the zone in my assessment.
For the reasons outlined, I am therefore satisfied that 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 cl 4.6(4) (a)(ii) is satisfied.
The concurrence of the Secretary has not been obtained in this instance. 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 KLEP (Initial Action at [29]).
I have considered the matters raised by subcl (5)(a), (b) and (c) including 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 specific circumstances of this case.
For those reasons the cl 4.6 written request to contravene cl 26 of the SEPP is approved.

HERITAGE - CONTENTION 3

The Council contends that the development has unacceptable adverse impacts on the local Heritage Item "Birralee" (25 Bushlands Avenue) in breach of cll 32 and 33 of the SEPP and on that basis, the application is prohibited.
In order to address the evidence, it is necessary to set out the relevant statutory framework.
Clause 32 of SEPP HS provides: 32 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.
Clause 33 of SEPP HS provides: 33 Neighbourhood amenity and streetscape The proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone.
On a reading of the text in context, cl 33 is qualified by cl 32.
Clause 33 is contained in Division 2. The precondition to the grant of consent is that the Court must not grant consent unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the design principle in cl 33(b).
Clause 32 does not require strict compliance or consistency with cl 33 but rather it must be satisfied that the development demonstrates that adequate regard has been given to the principle.
The SEPP defines "heritage item" and "heritage conservation area" as: heritage item means a building , work ,tree , archaeological site , Aboriginal object or place (which may or may not be situated on or within land that is a heritage conservation area) described as a heritage item in another environmental planning instrument. heritage conservation area means: (a) land identified in another environmental planning instrument as a heritage conservation area and includes buildings, works trees, archaeological sites, Aboriginal objects or places situate on or within that land, or (b) a place of architectural significance identified in another environmental planning instrument , or (c) a place of Aboriginal heritage significance identified in another environmental planning instrument
The KLEP dictionary defines "heritage item" and "heritage conservation area" as: heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5, heritage conservation area means an area of land of heritage significance: (a) shown on the Heritage Map as a heritage conservation area, and (b) the location and nature of which is described in Schedule 5, and includes any heritage items situated on or within that area.
Part 1 of Sch 5 of the KLEP identifies the relevant heritage item as Birralee, dwelling house located at 25 Bushlands Avenue, Gordon (Lot 3 DP 578395) and Part 2 of the Heritage Conservation Area as St Johns Avenue Conservation Area ("St Johns Avenue CA") shown in red hatching labelled C16A.
The parties have provided the Court with comprehensive written and oral evidence about this heritage contention including a joint report (Exhibit 3) and a supplementary joint report Exhibit 10 attaching certain agreed sketches. My understanding of the final position of the heritage experts following the amendments in Exhibit L is set out below.
Despite the agreed amendments to the design the Council's heritage expert Ms Hay's remained concerned about the intrusion of the development into the garden setting/ curtilage of the heritage dwelling Birralee. She believes the built form surrounds and dominates the item by removing view corridors on either side of the dwelling house. She is also concerned about the driveway access to the basement car park and elevated front pathway.
Mr McDonald has a different expert opinion. He does not believe that the development surrounds Birralee but rather has been carefully designed to avoid competing with Birralee. In his assessment, the garden setting is maintained when viewed from the key vista from the opposite side of the street. Noting that Ms Hay and Ms Higgins agree that the key vista is the view from the streetscape (Exhibit 5 p7 and p27 and recommendations folio 500, Vol 2, Exhibit 2).
By way of background, I note that the Council's resolution to place an interim heritage order on Birralee happened after the applicant had held a pre-DA meeting with the Council. The listing was based on the heritage assessment of Ms Higgins (Tab 95 Exhibit 2). At folio 500 of her report, Ms Higgins refers to the "garden setting" and recommended as follows: " A garden setting should be retained at the front and side of the house. The garden should include extensive lawn areas, and garden beds. The large fir tree should be retained as well as attractive mature shrubs whee these contribute to the setting of the house. Consideration should be given to reinstating a curved path and font garden bed in the original location".
According to the evidence, her recommended listing of the property as a heritage item came to fruition.
During her oral evidence, Ms Hay conceded that the development, as amended complied with the recommendations of the heritage report which was the basis of the listing except with respect to the elevated front path. And, as a result of joint conferencing together with the landscape experts, Ms Hay also accepted that the final landscaping proposal for the front and sides of the development, including the Heritage Item garden were acceptable. Although she remained concerned about the removal of a significant tree 23 (T94:25) and the elevated pathway at the frontage. Whereas, Mr McDonald accepted the elevated path was appropriate behind landscape screening - and the other changes including the modified driveway were acceptable.
Shortly stated, his evidence was that if the western wing of the driveway is located at the alignment of the existing house on that lot with landscaping and the garage door lowered (as now proposed in Exhibit L), then the western wing will appear as a two-storey building with basement garage which is a permissible form of development under the current controls (subject to a merit assessment). In light of this, the applicant submited on this evidence of Mr McDonald that the Court would not refuse this application, as modified on the basis of the driveway design.
Irrespective of these agreed amendments to the design to reduce its bulk and scale across the site - and the retention of more trees and new landscaping, Ms Hay did not change her ultimate view that the development dominates the Heritage Item when viewed from the street frontage. While she accepted that aligning the central wing with the garage is an improvement (T86: 30) she said that the overall size - bulk and scale across the site, is inconsistent with and not harmonious with the surrounding streetscape and subdivision being - domestic buildings forward of the lots and open space behind. Her oral evidence was that the St Johns Avenue CA beyond the site clearly demonstrates the inappropriateness of this development in this location (T99:35). She also expressed particular concern for the retention of Tree 23 as she believes that tree contributes to the setting of the item - (noting that this tree is about 55m behind the item).
Mr McDonald disagreed and said in terms of the pattern of urban development, particularly when viewed from the street level and the public domain. In his assessment the western wing is consistent with the existing houses in terms of width and setback along the street. And, as the development sits lower than Birralee, as the land falls down at this location, in his expert assessment the built form reflects the subdivision pattern that is number 27.
Furthermore, if the central wing is moved back as proposed, then, in his opinion, this element will have very little visual presence - particularly, with the retention of a lot of the vegetation that already exists along the driveways. And, the eastern wing, in his assessment, will be sufficiently set back so as not to be read strongly in the streetscape to interrupt the development pattern in the street. The fact that the development maintains the eastern garden and the front garden which is identified in the listing is, in Mr McDonald's opinion, important (T89:1-15). In contrast to Ms Hay's evidence, Mr McDonald believes that the heritage dwelling will read as the dominant built element on this site. In accepting that the ridge line of the eastern wing is higher and the main part is higher and the front part lower, he believes when viewed from eye level at the street you will see the cottage first with the buildings behind. He explained to the Court that the façades had been broken up intentionally to avoid an institutional appearance. In the eastern wing, there is to be glazing all the way around the lounge rooms to make it more domestic and light and the same treatment is incorporated in the western wing design (T90:5-14)
In terms of view corridors at the site today Mr McDonald said that it is very difficult to see much beyond the back of Birralee. And, when you look down the existing driveway to Birralee, the view beyond is blocked by the garage and trees. When you look to the east side of Birralee again the view is blocked by trees and that will remain the case (T90:15).
In his expert opinion, after construction of development the side setbacks will continue to appear as vegetated corridors and the eastern wing will continue to be screened by the Fir tree and proposed new plantings. In short, "the tongue" of the development (as it was referred to in the evidence) in close proximity to the Heritage Item at its south east corner for a very limited area will appear recessive because of its materials and its setback from the street and 16m behind the front façade of the item.
When looking from a historical significance (Part A, Assessment of significant p499 of the bundle), Ms Hay said that the proposed adaptive reuse of the site was not consistent with the heritage values of the Item and property -namely; a large site with a large healthy garden and tennis court around a suburban bungalow set in expansive lawns. In her opinion, the depth of the block should be retained as part of the significance of the place (T90:40:91:2) - although she conceded that the listing does not refer to keeping the tennis court and the rear planting depth. For those reasons she does not believe that the garden setting is maintained on the sides, despite being satisfied with the landscaping between Birralee and the street (T93:40). Ms Hay also understood when giving her evidence that the Planning Panel stipulated that a setback of 12m for the eastern pavilion was appropriate and that this had been reflected in the design and that the amended vegetation plan revegetates the whole rear corridor (T96:12) however, this did not change her expert opinion.
Accepting that the heritage listing applies to the entire Lot 33 DP 578395,and that the garden and house form a composition, Mr McDonald said in oral evidence that the visually prominent trees are primarily at the front, being the Himalayan Cedar against the bushland backdrop. He believes that the proposed development maintains the garden setting. And, while he accepted that the distance between the central wing roof overhang to the eve of the laundry of the Heritage Item is about 1m, this did not concern him because you would expect to see garages in that general area. If it were on the eastern side of the site, he would have been more concerned (T104:42). However, in terms of visibility, the opportunity to view the central wing (set back) about 1m from the Heritage Item at that point only and 16m back from the front of the heritage building will not detract from the significance of the Birralee as people get to see it as they go up the path (Exhibit G). Ms Hay disagreed and in response said believes this element will have a large impact on understanding and appreciating the Item (T15:7).
Furthermore, Mr McDonald is satisfied that the Heritage Item will be perfectly capable of being perceived on three sides: where the three sides are intact; where the original buildings are intact except for some windows in the upper gable, where the attic rooms have been added (T106:30). It is not surrounded although there are buildings to the north of the item but on the east and the west, it is not surrounded. The separation of the built form is perfectly adequate to give Birralee room to be interpreted in an enhanced garden setting on the western side and important vistas from the street are angled so that one sees east and west sides of the house as well as the front. While the viewing of the rear garden is compromised by the development, it is not the important garden setting. There is no formal garden there (T107:8). In his expert opinion, the development will sensitively harmonise in terms of the matters raised by cl 33(a) - (f). The increased built form on the site does not compete with Birralee as a fine example of late Federation period architecture.

Consideration / Findings - Contention 3

Clause 32 of the SEPP states that I cannot grant consent to the proposed development unless I am satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2 which include the matters in cl 33, with reference to both the Heritage Item and the conservation area.
In relation to the conservation area which I observed at the view, the applicant submits that this bushland is not a matter which has received any real attention in this appeal. The subject building in particular and indeed the landscaping is all but invisible from the bushland conservation area. And, to the extent that it may be visible from one or two dwellings in the street behind there is a separation of not less than 12m from the site to the boundary. These submissions accord with my observation of the area at the commencement of the hearing.
Moreover, the evidence establishes that those dwellings are about 40 to 50m back from the boundary and there is substantial vegetation which separates them. Accordingly, this area will not be adversely impacted by this development or offend the Design Principles set out in Division 2 and cl 33 of the SEPP that I have had regard to as required by cl 32.
The Council's SOFC also refers to cl 5.10 of the KLEP, being engaged because the purpose is to erect development in the vicinity of a heritage item. Therefore, the Court must have regard to subcl (4) the "effect of the …on heritage significance on the item". 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Ku-ring-gai, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land: (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. (3) When consent not required However, development consent under this clause is not required if: (a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development: (i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and (ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or (b) the development is in a cemetery or burial ground and the proposed development: (i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and (ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or (c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or (d) the development is exempt development. (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause. (7) Archaeological sites The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies): (a) notify the Heritage Council of its intention to grant consent, and (b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent. (8) Aboriginal places of heritage significance The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance: (a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and (b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent. (9) Demolition of nominated State heritage items The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item: (a) notify the Heritage Council about the application, and (b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent. (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
I have considered both the heritage provisions in the SEPP and the KLEP. I have considered the heritage conservation management documents filed with the application. Noting that the Council has confirmed that it does not agitate any matter in relation to cl 5.10 of the KLEP.
In my opinion, Mr McDonald's evidence, as summarised, is consistent with the recommendations of Ms Higgins who undertook the heritage assessment that formed the listing and the terms of the listing. The listing does not recognise the tennis court as part of the garden - albeit a condition has been included for the archival recording of the Heritage Item and the garden in any event.
His views about the acceptability of the impacts of the development behind the Item which will be glimpsed on the western and eastern sides of the item from the street accords with my understanding of the evidence about the impacts generated by the amended plans and my inspection of the site from the agreed key vista opposite during the Court view. From that main vantage point, I agree with Mr McDonald that in time there will be no more than glimpses of the development because of the proposed landscaping and vegetative screening Importantly, I also agree with Mr McDonald that the side setback as modified will continue to appear as vegetated corridors thereby maintaining reasonable neighbourhood amenity and appropriate residential character: cl 33(c)(i) and (ii). The eastern wings will continue to be screened by the Fir tree and the proposed new plantings. The tongue of the building is setback and will appear as a light weight glazed structure. And while in close proximity to the Heritage Item at its south east corner to the eave for a very limited area as Mr McDonald states this will appear recessive because of its material and the fact that it will be setback from the street some 16m behind the front façade.
In my assessment of all the evidence, I prefer Mr McDonald's assessment that the development will not dominate the Heritage Item as Ms Hay believes. I have reached this conclusion because I accept that the proposed development has been broken up and for that reason will not appear overbearing or dominating of the Heritage Item or the streetscape. By retaining the Heritage Item as designed, I accept Mr McDonald's expert opinion that the development will be set back in sympathy with the existing building line of the street. The evidence is that the height of the development and setback will be of a compatible scale to the adjacent development.
With respect to the impact on the St Johns Avenue CA which adjoins the rear boundary of the site, that I observed at the view, I accept that it will be regenerated forest with the buildings set back 12m extending 55m from the boundary. On that basis, I agree with the applicant that the visible interface to the St Johns Avenue CA will remain as a forest but with more dense plantings maintained until fully established
After careful consideration of the written reports and plans and the oral evidence, I am satisfied that the proposed development demonstrates that adequate regard has been given to the design principles in Division 2 (cl 33) referred to in cl 32 for the reasons outlined by Mr McDonald. Through adaptive reuse of the item as part of the residential facility and the sensitive location and redesign of the new buildings in order to maintain the key vista of the item to protect and enhance the front and side gardens the development has sought to retain and complement and sensitively harmonise with the Heritage Item: cl 33(b). The protection and enhancement of the rear forest corridor so as to maintain and strengthen its vegetative interface with the adjoining HCA demonstrates how the development has sought to recognise the desirable elements of the locations current character and contribute to the quality and identity of the area: cl 33(a).
I am also satisfied that adequate regard has been had to cl 33,again for the reasons expressed by Mr McDonald as summarised to the design of the proposed development in an effort to retain, complement and be sensitively harmonious with the St Johns Avenue CA area adjoining the site and the Heritage Item "Birralee" as identified in the KLEP.
In my opinion, a great effort has been made to redesign to ensure that the development will appropriately accommodate the neighbourhood amenity and streetscape in accordance with the SEPP provisions listed in cl 33(a) - (f) and cl 5.10 of the KLEP.
Ms Hay's concerns with the development particularly in relation to view corridors on either side of the dwelling house do not reflect the amended design which I am now asked to approve. The impact of the loss of the tennis court and loss of the trees in the forest at the rear are not the focus of the heritage listing or of concern now according to the evidence of the ecologists, as agreed. The forest will be regenerated and managed and this will result in an improvement in its condition. And, while I acknowledge her heritage expertise and view that the development dominates the Heritage Item by its form, scale and proximity to the item and the loss of Tree 23 for example, I am satisfied that these concerns have been satisfactorily addressed by the extensive amendments and recommendations of the experts now incorporated in the amended application and in the plans in Exhibit L. As discussed by Mr McDonald in the joint report Exhibit 3, the proposed development has been designed to read as secondary to the Federation period residence "Birralee". It has been designed in scale, form, materials and proportion to compliment the original character of Birralee without detracting from the finer qualities that are evident in the Federation period residence. Having regard to the objectives in cl 5.10 of the KLEP, in particular objective (b), a conservation management plan has been prepared and respects the project whilst conserving its heritage significance and also respects the St Johns Avenue CA which abuts to the west. There are no visual or physical impacts that would adversely affect the significance of the St Johns Avenue CA at the rear of the site parallel with the Bushland Restoration Zone.
The heritage contention 3 is not a basis on which to refuse consent to this amended proposal as in my opinion adequate regard has been had to cll 32 and 33 of the SEPP and cl 5.10 of the KLEP for the reasons stated.

Acoustics

I have read the acoustic reports of Mr Cooper which address possible sleep disturbance from vehicles leaving the garage at night. This was a concern for the residents who addressed the Court and the Panel. Mr Cooper has recommended a condition to address this matter by restricting the use to the driveway after 11pm at night to any vehicle other than emergency vehicles. The applicant has agreed to the imposition of such a condition and it should be imposed.
The parties have not agitated any other merit issues apart from the lay objectors' concerns. Matters of traffic, acoustics, heritage and management of the STIF are dealt with satisfactorily in my assessment under s 4.15 of the EPA Act by the agreed conditions of consent (Exhibit E) and the amended plans (Exhibit L).

Conclusion

The objectors' concerns in respect of unacceptable boundary setbacks, building bulk and scale, noise, traffic, light spillage, adverse ecological and heritage impacts are, in my assessment, satisfactorily dealt with by the proposed agreed conditions in Exhibit E, and the amended plans. I am mindful that the application that I am being asked to approve is very different to that originally lodged with the Council. Importantly, it now reflects the amendments suggested by the Panel (who described the original proposal in its supplementary report as having merit but rejected the design proposed at that time) and the further amendments suggested and agreed by the experts in this appeal. I have no doubt that the objectors' fears and concerns expressed in respect of the development are genuine beliefs honestly held. However, on the evidence before me they are analogous to the fears and concerns dealt with in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 at [61]. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as probative evidence to found the outcomes sought. Fears must be able to be objectively tested and in this case, having had opportunity to test the evidence as required by s 4.15 of the EPA Act, I am of the opinion that such justified foundation and/or rational basis, is absent. For the above reasons I am satisfied that the development is permissible on the site and that the standard in cl 26 is complied with in this case.
Accordingly, the Court orders: 1. Leave is granted to the applicant to amend the development application and to rely upon amended plans in Exhibit L. 2. The appeal is upheld. 3. Development consent is granted for Development Application DA 0418/15 to demolish structures (except dwelling at 25 Bushlands Avenue) and construct a residential aged care facility, basement car parking and landscaping works under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at Lots 2, 3 & 4 DP 578395 known as 25, 25A and 27 Bushlands Avenue, Gordon in accordance with the amended plans in Exhibit L and subject to the agreed conditions in Exhibit E (now marked and annexed as "Annexure A"). 4. The exhibits are returned apart from Exhibits 1, 7, A, E, K and L.

Amendments 09 May 2019 - Pursuant to UCPR rule 36.17, due to an administrative error, the Court has corrected the published Judgment which contained typographical errors at paragraphs: [29], [71], [95], [144]-[145], [148], [156], [190]-[191]. 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: 09 May 2019

Wehbe v Pittwater Council (2007) 156 LGERA 446 Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143 Wilson Parking 1992 Pty Ltd v Council of the City Of Sydney [2014] NSWLEC 12 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) Ku-ring-gai Development Control Plan Category: Principal judgment Parties: Australian Nursing Home Foundation Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: C McEwen SC with M Staunton (Applicant) J Farrell (Respondent)

Evolution of the final DA and plans

The applicant relies on an amended application in the appeal which is different to that lodged and assessed by the Council staff and the Panel in 2017. The final amended plans are Exhibit L as modified by the proposed agreed conditions of consent (Exhibit E).
By way of background, it is of assistance to appreciate how the current application evolved based on the evidence.
The Council's staff prepared an assessment report dated 8 March 2017, recommending refusal of the DA. The report was referred to the Panel and it deferred a determination of the DA for the following reasons: "Reasons for Deferral The panel has visited the site and considered the report of the Council staff as well as the submissions of the local residents and the applicant. In relation to the reason for refusal in respect of location and access (reason 1) the Panel notes cl 26 of the Seniors SEPP is a development standard and able to be varied pursuant to cl4.6 (which has been submitted by the applicant). Having regard to the judgment of Justice Robson in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 the Panel considers the proposal for the provision of services on site, visiting professionals and the provision and operation of a bus for the use of residents addresses the objective of the provisions to provide development in a manner suited to residents who are both mobile, independent active and frail. The Panel considers that the site specific circumstances and facilities proposed would be a better planning outcome in the circumstances of this case and therefore was supportive of the cl 4.6 variation of cl 26 of the SEPP. In relation to the concerns regarding heritage and streetscape, the panel considered that the proposal does have merit but considers it needs further detail and amendments as follows: (1) The western building should be set back to the predominate alignment of the existing heritage dwelling on the site. (2) Courtyard 1 a that rear of the existing heritage item should be increased in size and allow deep soil to allow the growth of large, centrally located (15m plus) trees to maintain the backdrop to the heritage item. This may require the design of the basements to be amended. (3) The vegetation management plan should describe how the Sydney Turpentine Ironbark forest will be managed for its long term viability. The vegetation management plan should require retention of the Himalayan Cedar. (4) The skillion roof over the lift is to be a traditional hip to match the remainder of the development. (5) The rear setback is to be increased to 12 metres minimum to reduce the adverse impact on the St Johns Avenue Conservation Area. (6) Review and resubmit traffic report to consider the impact of the service vehicles and community bus in terms of traffic generation and adequacy of Bushlands Avenue to safely accommodate the anticipated vehicle movements. (7) Review and resubmit acoustic report to consider the impact from service vehicles and community bus in immediate adjoining residents, particularly from 9pm to 6am . (8) The development should comply with controls 3 and 4 of cl 23.2 of the Ku-ring-gai Development Control Plan to achieve a 4 star Green Star rating. (9) Increase the disabled /assessable car parking spaces by 2 plus one additional ordinary space. (10) The wall opening to the ramp on the southern end of the western elevation is to be fully enclosed. (11) A plan of management is to be prepared to establish operation al practices of the facility including but not limited to the operation of the community bus, and the loading and unloading of service vehicles. All loading and unloading of service vehicles, waste services and community bus is to be undertaken in the basement. The community bus should also provide transport for staff to Gordon Station at the time when working shifts change. (12) Furthermore, it requested amended plans to be submitted to Council by 5 June 2017 addressing the above matters. The Panel requests the amended plans to be assessed by the Council staff and a supplementary report to be submitted to the panel one month after receipt of the amended plans after which time the Panel will consider the proposal." (North Sydney Planning Panel Supplementary Assessment Report dated 2 November 2017 (Exhibit J).
According to the evidence, the application was so amended and renotified in accordance with Part 25 of Ku-ring-gai Development Control Plan ("Council's DCP"). The amended application was then scheduled to be considered by the Panel on 15 August 2017. However, on that day, the Panel advised that the meeting was to be postponed so that a further assessment of acoustic issues raised by submissions could be undertaken.
As it happened, a further acoustic assessment was undertaken and reported. This report and the other amendments were assessed by the Council against each of the deferral reasons and resident submissions and were reported to the Panel. The Panel resolved to refuse the amended application on the following basis:

the cl 4.6 written request was inadequate
the proposal will have adverse impact on the Heritage Item at No. 25 Bushlands Avenue (Birralee);
the proposal fails to satisfy the Design Principles in Part 3 of the SEPP and aims of the policy;
the proposal does not comply with the provisions of the Council's DCP;
the landscape plans are inadequate; and
the proposal will result in unacceptable noise.

At this point, the applicant appealed the decision to the Court.
In accordance with the Court's directions, the Council filed contentions for the purposes of the appeal and the parties retained the experts, as identified, in the disciplines of town planning, heritage, arboriculture/landscaping, ecology traffic and acoustics. These experts conferred and produced joint reports which recommended further amendments to the design. With the Council's consent, the recommended changes were incorporated in Exhibit L. (Noting that the amendments are described in the Schedule of Amendments dated 1 November 2018 annexed to Exhibit L; and the final plans incorporate the design changes in Exhibits F (5 plans); and the southern elevation G referred to in the heritage/landscape experts' supplementary report Exhibit 10 and H) (T62:2).
These changes, it was agreed, satisfactorily addressed most of the Council's concerns about the impact of the development to the frontage and eastern side of Heritage Item, Birralee. The changes include:

Removal of the terrace at the southern end of the proposed eastern wing and re-establishment of the lawn and garden beds to the eastern side of Birralee;
Planting of an additional canopy tree between Tree 14 and the proposed eastern wing;
Deleted front path;
Removal of seating;
Realignment of garden edges to reflect existing lines;
Removal of proposed tree along front setback to provide views from Bushlands Avenue;
Gaps in planting are to be infilled with planting typical of Federation period;
Metal palisade fence without finials in the existing location;
Foundation garden planting along eastern elevation with infill planting typical of Federation planting;
RW tank set down 600mm with lawn above;
Lawn and garden bed extending to rear of Birralee;
Lawn and entry path association to be retained as existing.

The amended application also incorporates the agreement by the relevant experts that garden recordings of shrubs, groundcovers and finishes and plant selection - as well as an interpretation of the Heritage Item is - to be addressed by conditions. Furthermore, if possible, retention of Trees 24, 25 and 26, with the possibility of retention of Trees 80, 81, 82, 84 and 91 subject to further investigation of levels. It was also agreed that Tree 57 could be transplanted.
The amended plans also incorporate relocation of the retaining walls to the tapered area of Courtyard 2 closer to the western wing between the central wing and Courtyard 2 to enable retention of Trees 80 and 81. Noting, that the heritage experts did not agree that Tree 23 Cupaniopsis anarcardioides (Tuckeroo) should be retained.
With respect to the south elevation - the western wing, the experts agreed that the first floor single window should be modified to three windows and that the head height of the garage should be lowered as indicated on the Sketch plan attached to Exhibit 10 as reflected in Exhibit L. And, with respect to the central wing, Mr McDonald tabled a sketch plan showing the central wing shortened to align with the southern elevation of the garage and the northern wall of Birralee. The experts accepted this solution subject to the provision of elevations and sections with RLs being provided (see: Exhibit L).
The experts also agreed that subject to the changes to the front setback to the western wing as discussed in the supplementary report Exhibit 10 and detailed in SKO 1 (subject to the resolution of levels between the central and western wing), that the Council's concerns with this area were satisfactorily addressed. The changes included:

Deleted front path;
Existing levels are to be retained as much as possible within the front setback of western wing;
Existing dry-stone retaining wall is to be retained;
Rainwater tanks to be relocated in driveway or away from the wall of the building to provide garden bed for tree and shrub planting;
Proposed Jacaranda is to replace Tree 89/Acer negundo (Box Elder);
Garden planting to be sympathetic to Federation period;
Substation to be relocated closer to driveway if possible or to a less visible location where it would not impact on the curtilage of Birralee.

Lastly, Mr Shepherd tabled an amended sketch 'SK02' of the driveway indicating planters for hedge planting to screen the retaining walls on either side. The heritage experts disagreed as to whether the hedges will reduce the visual impact of the overall driveway entrance - with Ms Hay contending this remains inharmonious in the streetscape. (I address this streetscape heritage contention later).
During the hearing, the heritage experts produced a further plan marked 'Exhibit G' showing the agreed materials and finishes for the southern elevation to Bushland Avenue - which is also part of Exhibit L.

The Council's position - Contention 1

Council has provided written submissions dated 29 October 2018 addressing Contention 1 (CWS). They acknowledge the well-established general principles to be applied in construing statutes and subordinate legislation such as the SEPP - consideration of the text, context and purpose.
They also emphasise the Court's recent remarks that the ordinary meaning of a word may after consideration be displaced by its context and purpose: see Gleeson J in Fairfax Digital Australia & New Zealand v Kaza [2018] NSWCA 77 at [130]-[131] citing Sztal v Minister for Immigration (2017) 91 ALJR 936; [2017] HCA 34 at [14]; see also Gageler J at [35]-[37] and the plurality in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381; [1998] HCA 28 at [69]. And, in relation to intrinsic or grammatical aids to interpretation, they state that the apparent scope of a section may also be limited by other sections in an Act.
These introductory submissions are made, no doubt, to support the Council's position that I should follow the approach of this Court in Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143 ("Whittaker"). That is, when focussing on the text of the relevant provisions of the LEP and the SEPP, whilst at the same time having regard to its context and purpose, to recognise that recent authorities have generally supported a textual approach to determining whether land can be categorised by reference to a "like description" of land itemised in Sch 1 of the SEPP: Warringah Shire Council v Punnett & Associates Pty Limited (2001) 122 LGERA 1; [2001] NSWCA 480; ("Punnett") and Pepperwood Ridge Pty Ltd v Newcastle City Council (2006) 145 LGERA 340; [2006] NSWCA 122 ("Pepperwood").
Starting with the chapeau to Sch 1, the Council submits that for land to be excluded from the SEPP it must be identified by another environmental planning instrument within any of the following three specified categories: 1. the descriptions in paragraphs (a) to (m) (category 1); 2. "like descriptions" to the descriptions in paragraphs (a) to (m) (category 2); and 3. "descriptions that incorporate any of the …words and expressions" used in paragraphs (a) to (m) (category 3).
There is no dispute that the KLEP, in this case, qualifies as another "environmental planning instrument" for the purposes of Sch 1.
Accordingly, the issue is whether the portion of the site marked "biodiversity" falls within any of the specified categories in the chapeau to Sch 1 of the SEPP.
Put simply, the Council's position is that the site will only fall within category 2 if the expression "biodiversity" is a "like description" for the expression "conservation" or "environment protection". And, if I determine that it is a "like description", then the SEPP does not apply and the proposed development is prohibited on the portion of the site identified as "biodiversity". If that is not my interpretation, then the SEPP applies and the development is permissible on that portion of the site (CWS at [72]).

(2010) 172 LGERA 380

(2004) 140 LGERA 379

(2001) 116 LGERA 319

(2007) 156 LGERA 446

(2006) 145 LGERA 340

(2006) 150 LGERA 130

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (29)

Cited By (10)