Boston Blyth Fleming v Hornsby Shire Council

The proposal

1. The application before the Court involves the demolition of the existing dwelling, tree clearing and construction of a residential care facility under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP). "Residential care facilities" generally provide a higher order of care than hostel or self-contained units, which the SEPP is also concerned with. The proposal comprises a two and part three storey building with basement car park (76 spaces). It would provide 143 residential care suites along with support facilities including dining areas, lounge areas, courtyards, nurse's stations, therapy rooms, a chapel, a cafe and various other amenity and utility areas. Vehicle ingress and egress is provided from a single access point off Old Northern Road, with the driveway to basement parking running along the eastern boundary. Pedestrian pathway improvements are also proposed to improve connectivity to Round Corner. The facility would employ 125 support staff on a roster basis over three shifts.

Statutory framework

1. The site is within the RU2 Rural Landscape zone under Hornsby Local Environmental Plan 2013 (LEP). The proposal is prohibited in the zone. The frontage of the site is subject to acquisition for road widening. The proposed layout has taken account of this intended future acquisition.
2. The application is made under the SEPP, which overrides (certain) local controls in order to achieve its objective of increasing the supply and diversity of accommodation for seniors or people with a disability. In this case, one of the triggers to make permissible, and thus enable a merits assessment of, the residential care facility proposal, was for the "Director - General" of Planning to issue a "site compatibility certificate". There is no dispute that the required compatibility certificate was issued and the proposal is permissible under the SEPP. The SEPP prevails over the LEP but only to the extent of any inconsistency.
3. Clause 48 of the SEPP establishes certain standards that cannot be used to refuse development consent for residential care facilities. It is not in dispute that the proposal meets the standards in regard to density and scale (1:1 FSR or less), landscaped area (25 m2 of landscaped area per bed) and parking (1 space per 10 beds and 1 per 2 persons employed, plus 1 ambulance space).
4. There are particular provisions arising under both the SEPP and the LEP which have warranted consideration in the appeal and are relevantly considered below. Hornsby Development Control Plan 2013 also applies to the site and was a matter for attention in the evidence.

Relevant background

1. The original development application to Council (DA 1540/2016) involved 153 suites. After due deliberations, the assessment report by Council officers dated 15 November 2017 recommended refusal of the application for a number of reasons, summarised as: incompatibility with surrounding area (including in regard to the proposal's bulk, scale and built form), inconsistency with the Greater Sydney Commission's Draft Northern District Plan, accessibility problems, building height (exceeding the LEP standard), inadequate accounting for rural character and boundary interfaces, sewer services not resolved, uncertainty on the future use of the residue land. The Sydney North Planning Panel's determination only in part agreed. Its determination included the following commentary: The Panel considered the reasons for refusal in the planning assessment report and concluded that of those reasons only one was determinative … … which refers to the lack of compatibility with the surrounding area. This is particular true of the eastern elevation, where the proposal adjoins land which is rural in character. The Panel determination goes onto to say: "the design would look entirely alien in its setting" … "what is needed is not just articulation but major indentation which is able to break the building visually into two or three parts (even if there is a physical connection between the parts)".
2. On 5 April 2018, the Court granted leave to the applicant to rely on amended plans, which have been under consideration in this appeal. The applicant's submission is that these amended plans are intended to respond to the concerns raised by the Panel in their refusal of the DA, as well as contentions raised by Hornsby Council as respondents in this appeal.

The issues

1. I would summarise the issues in contention in the hearing as follows: (1) consistency with RU2 Rural Landscape zone objectives, (2) compatibility with surrounding environment, (3) public interest - in particular in relation to the Greater Sydney Commission's North District Plan, and (4) what is seen as the possibility of further seniors housing on the site and surrounds into the future. These issues are considered in turn below. Issues to do with accessibility and sewerage servicing were in contention initially. There is now agreement on the part of the applicant to construct an access way between the site and the traffic signals to the west of the site (and evidence of its practicality), and Sydney Water approval in principle of certain sewer infrastructure arrangements. Without prejudice deferred commencement conditions were agreed between the parties in regard to both of these matters.

RU2 Rural Landscape zone objectives

1. There is a requirement under cl 2.3(2) of the LEP for the consent authority to consider the zone objectives in the assessment of a development application. Council argued that the proposal was inconsistent with the objectives of the RU2 zone, which are as follows:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To maintain the rural landscape character of the land.
• To provide for a range of compatible land uses, including extensive agriculture.
• To encourage land uses that support primary industry, including low-scale and low-intensity tourist and visitor accommodation and the provision of farm produce direct to the public.
• To ensure that development does not unreasonably increase the demand for public infrastructure, services or facilities.

1. The key concern was the objective to "maintain the rural landscape character of the land." The proposal, and the extensive building works it was proposing within this zone, was seen as entirely at odds with that objective due to its inconsistency with rural landscape character.
2. The applicant referenced clauses 5(3) and 15 of the SEPP (reproduced relevantly below) which were argued to provide that the SEPP would prevail in instances of conflict with the LEP. 5 Relationship to other environmental planning instruments … (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. 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: … (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.
3. Under cl 2.3(2) of the LEP, the Court must have regard to these zone objectives in any event. In doing so, I note that it would be not unexpected that there would be instances of inconsistency with the zone objectives given that the SEPP, in the interests of its overall goal of encouraging seniors housing, is "setting aside local planning controls" (SEPP cl 2(2)). Having regard to the general weight needing to be given to the SEPP's objectives, in this instance I would not see the proposal's inconsistency with the zone objective to "maintain the rural landscape character of the land" as being determinative in this matter. The consequences of the inconsistency of the proposal with adjacent rural land come to some attention below.

Compatibility with the surrounding environment

1. Council noted that the site compatibility certificate should be considered as a necessary procedural step only, and was not binding on the Court. The SEPP is clear (at cl 24(3)(a)(ii)) that, even if there is a compatibility certificate issued, a consent authority can refuse to grant consent based on its own assessment of the compatibility of the proposed development with the surrounding environment. Council called on this provision, with a central contention being that the proposed development is not compatible with the surrounding environment. The concerns here are in regard to the proposed "bulk, scale, built form and character of the proposed development". The consequence is that the built form of the (proposal) does not have adequate regard to "the rural landscape character of the surrounding rural land". There are implications for both the rural lands and the more urban land to the west of the site as it (the latter) would lose or have reduced benefit from the "existing rural outlook". I note that as the proposal complies with the FSR standard the issue of "scale" cannot be a reason for refusal (see SEPP cl 48 and paragraph 7 of this judgement).
2. The judgement in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 is a commonly suggested reference point on the interpretation of "compatibility". In Project Venture (and in a planning principle adopted by the Court subsequently based on it), compatibility, is seen to mean "capable of existing together in harmony" [24].
3. It is clear that the proposed development would be very different from other development in the site surrounds (although it was demonstrated that there were other large buildings here and there in the wider locality). Mindful of Project Venture, the question before the Court, however, is whether this development comprising a "two and part three storey building with site coverage of approximately 6,360m2, an overall building length of 106m, and a width of 70m", and associated activities, could be capable of existing together in harmony with the surrounding environment.
4. The evidence at the hearing tended to work through the question of how the development might be received from different receptor locations as a means of testing compatibility. A visual analysis prepared by Gartner Trovato Architects (included in Exhibit B) was referenced by the applicants planning expert Mr Richard Fleming. Below I summarise the evidence and make conclusions in regard to the pertinent receptor positions, before providing summary commentary on the wider question of compatibility.

Old Northern Road boundary interface

1. The proposed building is well setback from Old Northern Road and no substantive concerns were expressed in regard to this interface. There was acknowledgement of the intended future road widening and that the majority of the tree stand at the site frontage would not be disturbed with the proposal. Existing trees, proposed landscaping and site topography (ie the site falls away from the street) would mean the proposed building would not be a particularly strong visual element when viewed from Old Northern Road.

Eastern interface

1. This was the interface where most attention was focused in the hearing. There was considerable cross-reference to the determination of the Panel (see Paragraph 9 above). A question examined in evidence was the extent to which the revised plans, including changes to the built form and additional landscaping along the eastern boundary, adequately addressed the criticisms of the Panel. Ultimately, the court evidence by both experts was that the changes did respond considerably to the Panel's comments, with reduced building height and improved building articulation along the east.
2. I also have had regard to the Panel's considerations in coming to my own conclusions in this matter. This is a large building but I believe the proposal before the Court, when viewed from the east, is well articulated; presenting as three distinct building elements, while also providing the functional benefit (important to this development form) of connectivity between the elements for patients and staff. The design in the environs of the nearest rural property is sensitive to this relationship with a considerable building indentation (only partly broken by a single level covered walkway) and opportunity for canopy landscaping. Additional landscaping treatment was presented in a revised landscaping plan (Exhibit O, for which leave was granted) including additional screening planting along the eastern boundary further reduced potential for adverse visual impact. This also addressed concerns raised in regard to the visual impact of the car park and waste management area. I have noted the analysis and suggested conditions in the report prepared by Acoustic Logic (Exhibit E) which find that conditions can be applied to ensure mitigation of potential for noise impacts on the nearest adjoining property.

Southern interface

1. The interest here was how the massing of the building might interrupt (rather than "maintain" as the zone objectives were seeking to do) the rural landscape character. The views from Franlee Road (about 200m to the south) were given attention here and the extent of retaining walls required to the south of the building was acknowledged. There was agreement that the proponents' suggestion to include further screening landscaping to the south would satisfy this concern.

Western boundary interface

1. Mr Staunton raised Council's DA report of 15 November 2017 where he suggested Council's planning expert Mr Mahoney had concluded that the proposal's presentation to the west had adequate regard to SEPP design principles. While Mr Mahoney agreed in evidence at the hearing that the western presentation of the proposal was satisfactory on compatibility grounds, I do note that the amended plans (Exhibit B) suggest changes to the western elevation compared to that considered in Council's DA report (and by the Panel). Exhibit B plans indicate the changes increase the building mass which would be visible from the west. Nonetheless I am satisfied that the development is compatible with the neighbouring development to the west. Here I agree with both the experts that this area is already characterised as an urbanised precinct. I also agree that in some instances there will be an impact due to the loss of rural outlook. However, the proposal's western edge landscaping would soften any direct impact of the proposed development.

Conclusions on compatibility

1. Generally I agree with Mr Staunton's argument that the SEPP is directly contemplating the fact that developments of the form proposed will be different from that which pre-exists in the site environs. In this instance, the design responses (built form and landscape architecture) mean that in terms of its visual presence, there will be good prospects for this development to harmonise quite well with its locality. I note Mr Seton's point that considerable excavation is required and that the development involves substantial modification to the landform. For me, this is an appropriate response to balance the achievement of local area compatibility while delivering a substantial scale project which, as he agrees, is in need. In coming to this conclusion on the scale of excavation, as requested by Mr Seton, I have had regard to the third planning principle expressed in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268. This principle is concerned with preserving topography which assists in reducing the visual dominance of a building. In my view, the circumstances here are different. The proposed excavation is concerned with reducing the visual dominance of a building.

Potential future additional seniors living development

1. Council raised concerns about the prospects for the residue of the subject land to be developed as seniors housing. It was also noted in the hearing that the proponents of the residential care facility had taken ownership of the land immediately to the east of the subject land.
2. Clearly future applications for seniors living development, if any, will need to be assessed on their own merits. As such this issue is not of relevance to the appeal.

Strategic considerations - North District Plan

1. Council raised concerns that the proposal would be inconsistent with the Greater Sydney Commission's North District Plan. Particular reference was made to Planning Priority N18 which was concerned with better managing rural areas, maximising the productive use of rural land and incentivising biodiversity protection for remnant vegetation. The proposal, located as it is on identified rural land, was seen to be directly inconsistent with these goals.
2. Mr Staunton, for the applicant, argued the proposal was aligned with the North District Plan's provisions. Planning Priority N3 was noted which was concerned with "providing services and infrastructure to meet people's changing needs", with Hornsby LGA identified as one of the areas with the largest projected increase in the 65-84 age group (North District Plan p28).
3. I acknowledge the serious challenge involved in encouraging (and protecting) productive rural activities at the peri urban fringe, as well as those associated with biodiversity protection in the same areas. In this location, which is at the very edge of the urban footprint, I believe the priority must go to the objectives of the SEPP and its interest in meeting the growing demand for seniors housing and services, including on urban edge sites such as this.

Sewerage

1. The site is not serviced by reticulated sewerage infrastructure. Evidence was presented on a number of options to connect to Sydney Water's sewerage system. Council indicated a preference for any approval to refer to Sydney Water's preferred connection point (which was located in the Kenthurst Road reservation). A suitable deferred commencement condition was included in without prejudice conditions.

Access to facilities

1. Clause 26 of the SEPP provides a set of requirements for access to baseline services such as shops, banking, social and medical services. The accessibility credentials of the proposal were raised as a contention. In particular Council was concerned to ensure that there be adequate access (both pedestrian and wheelchair) from the site to the Round Corner shops across Old Northern Road and the bus stop, which was also located across the road. This issue was addressed in the hearing, with evidence forthcoming (Exhibit G) that it was practical to provide a suitable pathway connection to the Old Northern Road traffic lights. A deferred commencement condition was suggested to allow a design to be finalised (including a requirement for the concurrence of Roads and Maritime Services (RMS)). I am satisfied that appropriate access to facilities can be forthcoming with the proposal.

Lay submissions

1. In my view, Mr Lovell's concerns have been satisfactorily addressed in the expert evidence, with: (1) evidence of approval in principle of a sewerage management approach from Sydney Water, and (2) evidence of changes to the proposal (from split to combined entry/exit driveway) to accommodate the concerns raised by Roads and Maritime Services (RMS) in regard to traffic management on the Old Northern Road.

Findings

1. On the basis of the above analysis of the issues and evidence, I am satisfied that the application is acceptable and should be approved subject to the conditions at Annexure A. I note my request that there be a consolidated set of plans finalised which align the changes for which leave was granted in the Court, and that these coordinated plans have been agreed and form part of the consent documentation.

Orders

1. The orders of the Court are: 1. Leave is granted to rely on amended plans. 2. The appeal is upheld. 3. Consent is granted for Development Application 1540/2016 for a Seniors Living Residential Care Facility and associated demolition, vegetation removal and construction work at 705-717 Old Northern Road, Dural subject to the conditions at Annexure A. 4. The exhibits are returned with the exception of Exhibits A and 2.

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P Walsh Commissioner of the Court Annexure A (145 KB, pdf) Plans (9.23 MB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2018