Catholic Healthcare Limited v Randwick City Council

Catholic Healthcare Limited v Randwick City Council - [2019] NSWLEC 99 - NSWLEC 2019 case summary — Zoe

Background

Pursuant to the Randwick Local Environmental Plan 2012 ('RLEP'), the site is zoned RE2 Private Recreation. Seniors housing is not a permitted use in the RE2 zone. To enable development of the site for the purpose of seniors housing, a Site Compatibility Certificate ('SCC') was obtained pursuant to cll 4 and 24 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('SEPP (HS)').
The site is currently occupied by the Maroubra RSL Memorial Bowling Club and comprises three grass bowling greens and a small clubhouse. It is adjacent to three road frontages, being Malabar Road, Mons Avenue and Rossiter Lane. Vehicular access exists from Malabar Road and Mons Avenue. The site is relatively flat, approximately 10,850 square metres in area and irregular in shape. The site does not contain prominent trees or any substantial vegetation and it is not identified as containing terrestrial biodiversity, nor is it bushfire prone.
Land adjoining the site to the west, east and north is zoned R3 Medium Density Residential and the land to the south across Mons Avenue is zoned SP2 Educational Establishment and RE1 Public Recreation. The site is surrounded by a mix of low to medium density residential dwellings, local shops, recreation areas and a school. To the north of the site (on the opposite side of Rossiter Lane) are predominantly one to three storey dwelling houses. To the east of the site are one to three storey modern townhouses, and to the south (on the opposite side of Mons Avenue) is St Mary - St Joseph Catholic Primary School, which features one storey school buildings. To the west of the site (on the opposite side of Malabar Road) is shop top housing comprising a small supermarket and commercial use on the ground floor. Malabar Road is generally characterised by a mix of two to three storey residential flat buildings and single dwelling houses. The site is also in close proximity to open space and parks, including John Shore Park, Maroubra Beach, Arthur Byrne Reserve and Broadarrow Reserve.

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Development history

The following summary of the history of the development applications provides context for consideration of the issues: 1. On 12 September 2017, the Deputy Secretary for Planning Services, as delegate of the Secretary of the Department of Planning and Environment, issued a SCC to the applicant pursuant to cl 25(4)(a) of SEPP (HS) providing, inter alia, that: • the site described in Schedule 1 is suitable for more intensive development; and • the development described in Schedule 1 is compatible with the surrounding environment and surrounding land uses, having had regard to the criteria specified in clause 25(5)(b); and • that development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding land uses only if it satisfies certain requirements specified in Schedule 2 of this certificate. 1. The "requirements specified in Schedule 2" referred to in the third bullet point above were as follows: … The final layout, building construction and onsite facilities in the proposed seniors housing development will be subject to the resolution of issues relating to: • building height, bulk and scale; • flooding; • traffic; • flora and landscaping; • potential land contamination; and • geotechnical hazards. 1. The Concept Development Application was lodged with Council on 10 July 2018 and was referred to various public bodies and instrumentalities. It was publicly notified and Council received 338 submissions raising concerns primarily in relation to bulk and scale, visual impact, traffic and car parking, and loss of recreation and open space. On 6 August 2018, the Concept Development Application was considered by Council's Design Review Panel. On 11 December 2018, as a result of Council's deemed refusal, appeal proceedings 2018/00381498 were commenced and on 19 December 2018, the applicant was granted leave to rely on amended plans which were re-notified. Council received 85 submissions in response. On 3 May 2019, the applicant was again granted leave to rely upon amended plans and documentation. 2. The Stage 2 Development Application was lodged with Council on 26 September 2018. Similarly to the Concept Development Application, as a result of Council's deemed refusal, on 11 December 2018, appeal proceedings 2018/00381499 were commenced. On 19 December 2018, the applicant was granted leave to rely upon amended plans and documentation which were re-notified. Council received 71 submissions in response. On 4 February 2019, the Stage 2 Development Application was considered by Council's Design Review Panel. On 3 May 2019, the applicant was again granted leave to rely upon further amended plans. 3. Council received 99 submissions in response to the notification of the Concept Development Application (as further amended) and the Stage 2 Development Application (as further amended). 4. On 12 June 2019, Council filed an Amended Statement of Facts and Contentions ('SOFAC').

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SEPP (HS)

Clauses 2, 5, 24, 25 and 32-34 of SEPP (HS) relevantly provide: 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. 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. ... 24 Site compatibility certificates required for certain development applications (1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) if: (a) the development is proposed to be carried out on any of the following land to which this Policy applies: (i) land that adjoins land zoned primarily for urban purposes … (iii) land that is used for the purposes of an existing registered club, or … (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the relevant panel [cf Director-General] has certified in a current site compatibility certificate that, in the relevant panel's [cf Director-General's] opinion: (a) the site of the proposed development is suitable for more intensive development, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25 (5) (b). Note. Clause 50 (2A) of the Environmental Planning and Assessment Regulation 2000 requires a development application to which this clause applies to be accompanied by a site compatibility certificate. (3) Nothing in this clause: (a) prevents a consent authority from: ... (ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or (b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies. ... 25 Application for site compatibility certificate ... (5) The relevant panel [cf Director-General] must not issue a site compatibility certificate unless the relevant panel [cf Director-General]: ... (b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria: (i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development, (ii) the impact that the proposed development is likely to have on the uses that, in the opinion of the relevant panel [cf Director-General], are likely to be the future uses of that land, (iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision, … (v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development, … (vii) the impacts identified in any cumulative impact study provided in connection with the application for the certificate, and ... 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.

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1B Local character and context … The range of scales Apartment development needs to consider a range of scales during the planning and design phase. Wider scale: The wider scale includes the urban structure, landscape setting and broader land use patterns of the wider context and identifies the development site's proximity to centres, transport and major public open spaces. It should also illustrate the future density and proposed change of the area (if known or applicable) and highlight important infrastructure such as major hospitals, schools and education facilities. Addressing this scale is important for larger precincts and redevelopment sites in particular. As a guide, a radius of 1 to 5 kilometres around the development site should be considered. Neighbourhood scale: The neighbourhood scale outlines the urban structure including streets and open spaces. It should also include topography contours, drainage and vegetation patterns, services and future infrastructure requirements (if known), land use zones, cadastre boundaries and identification of heritage items and other local landmarks. It is appropriate to address this scale when planning for individual or small groups of apartment building sites. A radius of 400 metres to 1 kilometre should be considered. Streetscape scale: The streetscape scale deals with the character of the street(s) that the proposed development addresses, and shows its spatial enclosure by buildings or landscape elements. It should outline surrounding building uses and heights, front setbacks, pedestrian access, awnings, vehicle driveways and public domain elements including street trees, verges and footpaths. It is appropriate that all proposals for apartment buildings address this scale. Site scale: The site scale involves detailed consideration of the individual development site relative to neighbouring properties, buildings across the street and the public domain. It addresses surrounding and proposed deep soil zones and open spaces, existing vegetation and trees, fences, retaining walls, overshadowing impacts and privacy considerations. This scale should also highlight any other site specific factors such as orientation, slope, geology, infrastructure or access easements and stormwater management..

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RLEP

Clauses 6.11 and 6.12 of the RLEP relevantly provide: 6.11 Design excellence (1) The objective of this clause is to deliver the highest standard of architectural and urban design. (2) This clause applies to development involving the construction of a new building or external alterations to an existing building: (a) on a site that has an area of 10,000 square metres or greater, or … (3) Development consent must not be granted to development to which this clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence. (4) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites, (d) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency, (e) whether the proposed development detrimentally impacts on view corridors and landmarks. 6.12 Development requiring the preparation of a development control plan (1) The objective of this clause is to ensure that development on certain land occurs in accordance with a site-specific development control plan. (2) This clause applies to development on land: (a) that has a site area of at least 10,000 square metres, or (b) identified as "DCP required" on the Key Sites Map. (3) Development consent must not be granted for development on land to which this clause applies unless: (a) a development control plan that provides for the matters specified in subclause (4) has been prepared for the land, or (b) guidelines and controls similar to those mentioned in subclause (4) already apply to the land, or (c) the development is of a minor nature and is consistent with the objectives of the zone in which the land is situated. (4) The development control plan must provide for all of the following: (a) design principles drawn from an analysis of the site and its context, (b) phasing of development and how it will provide for the social and recreational needs of a new community, (c) distribution of land uses, including open space (its function and landscaping) and environment protection areas, (d) subdivision pattern and provision of services, (e) building envelopes and built form controls, (f) housing mixes and tenure choices, including affordable and adaptable housing, (g) heritage conservation, including both Aboriginal and European heritage, (h) encouraging sustainable transport, including increased use of public transport, walking and cycling, road access and the circulation network and car parking provision, including integrated options to reduce car use, (i) impact on, and improvements to, the public domain, (j) identification and conservation of native flora and fauna habitat and habitat corridors on the site, including any threatened species, populations or ecological communities, (k) the application of the principles of ecologically sustainable development, (l) identification, extent and management of watercourses, wetlands and riparian lands and any buffer areas, (m) environmental constraints, including climate change, acid sulfate soils, flooding, contamination and remediation, (n) opportunities to apply integrated natural water-cycle design and integrated renewable energy design.

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Evidence and conduct of hearing

The Court received extensive documentary evidence including material that was lodged by the applicant with Council in relation to both development applications, original and amended plans associated with the applications, including civil engineering and landscaping plans as well as a four volume bundle of documents comprising the submissions received in relation to each of the public notifications of the various amendments of the proposal. The evidence before the Court, much of which was not specifically referred to, comprised approximately 5,000 pages.
In addition to the background material which accompanied the applications, the Court received joint expert reports in relation to traffic and parking, civil engineering and access, some of which addressed earlier concerns raised by Council. Without summarising the material in each of those joint reports, I am satisfied that the reports properly address the issues earlier raised and some concerns raised in the submissions of objectors.
Relevant to the principal issue in these proceedings, an extensive joint report in relation to "town planning, urban design and architecture" was prepared by Tom Goode, town planner, Daisuke Jepsen, urban designer and Lisa Marie Carrigan, architect, each of whom was retained by the applicant, and Stuart McDonald, town planner and Jon Johannsen, urban designer and architect, both of whom were retained by Council. The experts attended the site inspection on 9 July 2019 and gave concurrent evidence on 10 July 2019. The joint report is detailed and addresses 11 discrete contentions raised in the SOFAC. The report consists of over 300 paragraphs of expert commentary in relation to the experts' various opinions and annexes a large volume of documents referenced in the report, a detailed architecture and design report ("architecture and design report"), including plans showing existing building typologies in the surrounding area, solar analysis, details of buildings three storeys and above in the surrounding area, surrounding land use, building separations of surrounding development, compliance with setbacks required by the ADG and RDCP and footprints of surrounding buildings.

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Submissions - Council

Ms Reid of counsel made the following submissions on behalf of Council: 1. While the SEPP (HS) allows a land use that may be inconsistent with the RLEP and the SCC facilitates that land use, development for the purpose of that use is not unfettered. The SEPP (HS) requires that the proposed development meet certain character requirements. Use is different to form and the form of this development is constrained by the controls within the SEPP (HS) and the tests the Court needs to consider. While the aim of the SEPP (HS) is to increase supply and diversity of housing for the aged and disabled population, cl 2(2)(b) states that the aims of the policy would be achieved by, inter alia, setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form. 2. The SCC was issued subject to requirements in Sch 2 which need to be complied with, including the issue relating to height, bulk and scale. While Council does not seek to challenge the SCC, it is relevant to understand what development the Department of Planning thought was appropriate for the site. 3. While there is no dispute in relation to cl 24(2)(a) of SEPP (HS), Council takes issue with cl 24(2)(b). The Court would not be satisfied that the Director-General certified in the SCC that in its opinion the development for the purposes of seniors housing of the kind proposed in the development application was compatible with the surrounding environment having regard to the criteria specified in cl 25(5)(b). When the SCC is read with the accompanying report and Sch 2, it is clear that the Department considered that the height, bulk and scale of the development could be satisfactory, but on the current plans it was not. The SCC effectively deferred consideration of whether the proposed development was compatible with the surrounding land uses with regard to the requirements in cl 25(5)(b)(v) of SEPP (HS). 4. Regardless of the SCC, the Court standing in the shoes of the consent authority has to decide for itself whether the built form is compatible. The beginning of the statutory test as to character is in cl 32 of SEPP (HS), which references Div 2 (design principles). Clause 33 is the primary clause in contention between the parties in relation to design. The Court must be satisfied that the applicant has had adequate regard to the matters therein. This is particularly so given that the proposed development is on a large site and will remain there for a long time. 5. In construing cl 33, which is entitled "Neighbourhood amenity and streetscape", regard should be had to the definition of "streetscape" in cl 3. The Court must form a subjective opinion with the assistance of expert evidence as to whether the proposed development properly recognises the desirable elements of the current character of the area and whether the proposed development will contribute to the quality and identity of the area. The proposed development does not have adequate regard to the desirable elements of the current character of the area. 6. The height and scale of the proposed development is inappropriate for the particular site and is not in keeping with the surrounding existing and desired future character of the area. Even in its modified form, the buildings, save for Building A1, are of an inappropriate bulk and scale. Specifically, it is the fourth storey on Building A2, the form of Building B and the form and typology of the RACF building that are of concern. 7. In cross-examination, Mr Goode was taken to his context analysis (at Appendix F to Exhibit 3), and he agreed that the buildings identified in table 4 therein, to the extent that they were above Council's contemplated controls, were not desirable elements of the location's current character. This point is not in any of the applicant's documents. 8. While the FSR controls in the RLEP are not applicable to the site, when considering character and context and applying the test under cl 33 of SEPP (HS), those controls are useful in determining what Council is trying to achieve in terms of the current and desired future character of the area. The RLEP prescribes FSRs for the surrounding lands in the order of 0.9:1, 0.75:1 and 0.5:1. The proposed development seeks consent for an FSR of 1.23:1 (when assessed under the RLEP) or 1.36:1 (when assessed under the SEPP (HS)). 9. While cl 4.3 of RLEP (height of buildings) does not apply to the site, the objective of the clause is to ensure that the size and scale of development is compatible with the desired future character of the locality and to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. While there is no concern about overshadowing or distant views, concerns relating to visual bulk and loss of privacy remain. 10. The Court is obligated to consider the objectives of the RE2 zone pursuant to cl 2.3(2) of the RLEP. However, given that that provision is inconsistent with the SEPP (HS), consideration thereof discharges the Court's obligation. While not a mandatory requirement in the RLEP, it is also relevant for the Court to have regard to the objectives of the R2 and R3 zones when considering the context of the development. 11. Despite the residents' concerns with respect to the removal of the RSL Bowling Club as open space, this is not pressed as an issue given that it is private land and there are other areas in the locality owned by Council for the purpose of open space.

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Submissions - applicant

Mr Hemmings, senior counsel for the applicant, made the following submissions: 1. Council deliberately decided not to apply controls on a 10,000 square metre site, but to provide an opportunity for strategic planning. Despite Council directing the Court to the RLEP height map and FSR controls, neither of those controls apply to the site and it would be inappropriate to transpose controls from neighbouring land onto the site. 2. Due to the operation of s 4.23 of the Environmental Planning and Assessment Act 1979 (NSW) ('Planning Act'), there is no need for the preparation of a DCP because the concept plan fulfils the role of the DCP so long as it satisfies the requirements in cl 6.12(4) of RLEP. The cl 6.12(4) requirements have been adequately addressed. 3. Clause 6.12(4) of RLEP requires consideration of, inter alia, design principles, open space, building envelopes and built form controls. The applicant significantly oversupplies open space, whether one has regard to the ADG requirements, Council's requirements or SEPP (HS) requirements. The site will have access for the residents at all times and daylight access for members of the public to use the pedestrian through-link and communal areas, which will be controlled by a proposed plan of management. In relation to building envelopes and built form controls, the controls contained in the ADG are complied with. Further, the Court has before it adequate analysis of the site, its context and its relationship to its neighbours in the Concept Development Application. 4. Seniors housing is permitted in the R3 zone, as are office premises, neighbourhood shops and business premises. It is therefore quite an unusual R3 zone in that it is not just one that anticipates shop top housing, medium density development and neighbourhood shops. Therefore, seniors housing is permissible on neighbouring land. 5. In considering compatibility and context, the purpose of the SEPP (HS) is to facilitate seniors housing development, including dwellings or residential flat buildings for the mature or less able, and high care facilities. Residential aged care facilities by their very nature have a different appearance to residential flat buildings. While this does not mean one can erect a monolith, it is a helpful starting point to inform consideration of compatibility and form of the development based on anticipation of something otherwise different to what one would usually expect in the R3 zone. 6. A deliberate approach was taken with respect to the design of Building B. The highly modulated form of the building, having one, two, three and four storey components, together with large setbacks, was designed to ensure that it minimised any impacts on its neighbours. 7. While Council submitted that the matters in cl 25(5)(b)(v) of SEPP (HS) had been deferred by the SCC as Sch 2 thereof left those matters to be resolved, there was no deferral and Mr Ray, on behalf of the Department, formed the relevant opinion of compatibility. If he had not, he could not have issued the SCC and Council would have challenged the validity of the SCC which they do not. 8. Clause 32 of SEPP (HS) ensures that in determining whether development is appropriate, adequate regard is had to the design principles in Div 2, including desirable elements of the location's character (cl 33(a)). Regard should be had to the wording in cl 33(d) and complement does not mean "the same as". Further, Council did not, either orally or by expert evidence, identify what it says the desirable elements are that the applicant did not recognise. Those desirable elements have been dealt with in a more detailed way by the concept plan which replaced the DCP. Principles 1 and 9 of Sch 1 of SEPP 65 expressly require consideration of the desirable elements in the locality and this is reflected in the applicant's architecture and urban design report. 9. As Council's Design Review Panel suggests, if part of the site is appropriate for a different form of development (that is, a different typology and/or more intense development), the appropriate part of the site for such development is the corner of Mons Avenue and Malabar Road (where the RACF is proposed). This is particularly so given that the corner is one that can accept four storeys, noting that four storeys is a form of development reasonably anticipated by the surrounding controls. Further, corners have historically been treated differently by councils. 10. While Council expressed concerns in relation to the typology of the proposal as it has a different appearance to what one might expect in a residential environment, the detailed design response demonstrates that it is acceptable in the location proposed, the different typology is expressly anticipated by the instrument, and even if the site was in the R3 zone, that zone accepts business premises, office premises and seniors housing development, so it is not inconsistent. 11. The development has been prepared after detailed analysis which is ADG compliant and RDCP compliant (to the extent there are relevant RDCP provisions that still apply). It has no inappropriate external impacts and it has acceptable internal amenity. It has no overshadowing impacts and no external privacy impacts. To the extent that there are privacy impacts, in relation to Building B, mere distance of separation would be sufficient to deal with these. As the site is greater than 10,000 square metres, it is a strategic site which requires a master planning process or detailed analysis which has only been carried out by the applicant (with criticism but without critical analysis or cross-examination) where that process demonstrates compatibility and includes a typology which is different but specifically anticipated by SEPP (HS).

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Objectors' evidence

In addition to extensive written objections received by Council consequent upon public notification of the development applications, the Court heard oral submissions from six local objectors being Mark Worthington, Kerry Clare, Gus Nohr, Edward Caddle, Lara Barclay and Shelly Townsend. Each of those objectors spoke to and expanded upon their earlier detailed written submissions (and associated documentation). Without disrespect to the detailed concerns expressed by each of the objectors, they were generally reflective of the hundreds of pages of objections otherwise received, noting that a number thereof were pro forma objections. I consider that the concerns raised were generally in accordance with the matters raised by Council with the primary concern being in relation to the bulk and scale of the proposal and the resultant effect upon views, as well as separate concerns in relation to matters such as flooding, traffic and parking, the conduct of the applicant as a developer (being a suggested lack of intercourse with the local community), loss of open space, adverse visual impact, inadequacy of supporting material, contamination and waste management concerns, loss of privacy, access to sunlight and the loss of the RSL Bowling Club to the community.
It is clear that a number of concerns of the objectors were no longer raised as specific contentions by Council. Ms Barclay raised discrete concerns on behalf of the St Mary - St Joseph Catholic Primary School which is located opposite the site. In particular, Ms Barclay expressed concerns in relation to the likely effect of the development on the 350 students who attend the school, including a number of assisted learning students. Ms Barclay's concerns related to the size of the development, safety for the pupils due to traffic and parking impacts and interference with the school, particularly during the construction stage. She was specifically concerned that the expert traffic and parking evidence was based upon earlier traffic surveys that were not indicative of demand on a busy summer's day or school day. Ms Townsend, who resides at the residential development to the immediate east of the site, had further specific concerns in relation to loss of outlook as well as loss of sunlight and shadow effect upon her residential outdoor areas and the effect of the imposing nature of the proposal.

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Site compatibility and context

There is no suggestion that the proposed development is not development of the kind proposed in the development application the subject of the SCC. The essential issue relates to cl 24(3)(a)(ii) of SEPP (HS). That is, nothing prevents the consent authority from refusing to grant consent by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment.
While the SCC enables consideration of the site for this specific form of development, the Court is required to have regard to the criteria in cl 25(5)(b) of the SEPP (HS). Notwithstanding the SCC, the Court needs to come to its own conclusion as to whether the proposal is compatible by reference to cll 24(2)(b) and 25(5)(b) of SEPP (HS).
When assessing compatibility, the development does not have to be the same as its neighbours and neighbouring controls are not simply transposed. The essential question is whether the development fits. For the reasons that follow, and accepting the applicant's submissions, I find that the proposal does fit. In reaching this conclusion, although overridden by SEPP (HS) to the extent of any inconsistency, I have considered the objectives applicable to the surrounding zones (being R2, R3 and RE2) in the RLEP.
I find that although there is generally a 12 metre height control on neighbouring land, as previously stated, it is not appropriate to simply transpose that height limit onto the site. While I accept that neighbouring height limits may be indicative of future development on surrounding land, and while they may have some relevance in determining compatibility, I am conscious that the site is over 10,000 square metres and it presently has no relevant controls (due to its current and historical zoning). When considering compatibility, the manner in which the site is to be developed cannot be expected to be a replication of the surrounding development. Although I understand that that is not Council's (nor its experts') position, the size of the site and the development that may be appropriate on it (even to the extent that it is required to be compatible) does not require, on the instruments as I understand them and in my own consideration of appropriate development for the site, a replication of surrounding development.
As noted above, Council's position is that both applications should be refused because the development in terms of its height, bulk, scale and building footprint, spanning across four proposed buildings, is not compatible with the surrounding environment and thereby flouts a number of clauses in the relevant instruments. Council contends that much of the area's character is derived from a low density rectilinear residential subdivision pattern and corresponding built forms have prevailed in the surrounding R3 and R2 zones.
While it is not unusual when there is concern regarding height and bulk to inquire in relation to whether the impacts of a proposal are such as would be reasonably expected under applicable controls or development standards, and whether an area has a predominantly existing character (and in some circumstances, whether a proposal looks appropriate in its context), these inquiries must be seen in the context of a proposal such as the present which, but for provisions of a state environmental planning policy (such as SEPP (HS)) overriding local planning controls, local controls would otherwise be expected to provide guidance in consideration of not just the existing character but the likely future character (as existing character may be gleaned from observations of surrounding developments). This is particularly so in relation to SEPP (HS) developments, not the least because to some extent, design considerations (for example, the envelope of the RACF building in the present proposal) are driven by functional requirements and a use is proposed that would otherwise be impermissible. Of course, I am mindful of Council's submission that use is different to form and that the SEPP (HS) is not "unfettered". I accept that consideration is required to be given to clauses of the SEPP (HS) (including, for example, the provision of a site analysis study pursuant to cl 30), SEPP 65 as well as RLEP.
In considering the particularised concerns of Council, it is relevant to note that it is agreed between the parties (and more particularly, the five experts who have prepared the joint report in relation to the primary contention concerning height, bulk and scale), that the proposal, to the extent necessary, complies with the requirements in the ADG adopted pursuant to SEPP 65 (which relate to Buildings A1, A2 and B and not the RACF building) and the RDCP controls in relation to setbacks. Put simply, in relation to the internal aspects of the proposal, it is agreed that all requirements in the SEPP (HS) for each of the buildings (taking into account the type, nature and purpose of accommodation to be provided), are met. In relation to external aspects, which I refer to as the effect that the proposal has on the amenity of local residents and/or others, there remains disagreement between the experts.
While I do not summarise the detailed expert evidence in the joint report (or given orally), some understanding of the experts' views is appropriate.
There are clear differences between the experts in relation to the central issue of compatibility. Mr Goode opines that the local area is characterised by a variety of land uses and building types ranging from low to medium density residential development through to institutional buildings. He notes that the site is surrounded by the R3 Medium Density Zone and that the surrounding character is determined by that zone. He submits that there is no FSR control for the site. Mr Goode further notes that the surrounding FSR (that is, the R3 zoned land) is generally 0.9:1 and that the proposal, adopting the RLEP definition, has an FSR of 1.23:1 and adopting the SEPP (HS) definition, has an FSR of 1.36:1. In giving his opinion, Mr Goode refers to and relies upon the detailed site analysis which was undertaken in accordance with cl 30 of SEPP (HS) and the architectural and urban design report which explains the plans in terms of and in accordance with certain stated design principles which demonstrate and respond to building compatibility and character. Mr Goode's opinion is generally supported by Mr Jepsen and Ms Carrigan.
Mr Johannsen suggests that the architecture and urban design report significantly relied upon by the applicant involved "cherry picking" aspects of the applicable controls and development from the local context in an attempt to justify the proposed new use. He submits that there is a direct interface between the proposal and the R2 Low Density Residential zoned land (being the primary school opposite the site).
Mr McDonald points to what he considers large building footprints, height, bulk, scale and density to opine that the proposal is incompatible with the local context. Mr McDonald further opines that despite the RACF building being moved to the south east corner of the site from its earlier location towards the centre of the site, it will remain out of context and incompatible with the adjoining non-residential school building to the south of Mons Avenue which features one storey buildings with generous street setback. Mr Goode and Ms Carrigan respond that this is indicative of the varying character of the site's context.
Although the experts agreed that the proposal meets the ADG and RDCP setback controls, Mr Johanssen maintains concerns in relation to the "selective" use of building footprints and height which create a substantial built envelope. He says that even though the proposed residential flat buildings, being Buildings A1, A2 and B (that is, the development apart from the RACF building), meet the ADG and RDCP building setbacks and separation provisions, they are not consistent with the anticipated future residential development. He maintains that the RACF building is itself excessive in terms of footprint, bulk and scale.
While the experts agreed that the ILUs (that is, Buildings A1, A2 and B) footprints are indicative of contemporary residential flat buildings under the ADG requirements and that the RACF building footprint is larger than that of an ILU, Mr Goode opines that there is no FSR control for the site and the FSR controls of adjoining lands are not relevant. Similarly, Ms Carrigan indicates that Buildings A1 and A2 in particular have relatively small footprints and are well within the ADG criteria. Mr Jepsen accepts that the RACF building appears to have a larger footprint because of the dementia courtyard which is elevated one storey above ground, however maintains that the footprint is consistent with the context. There was disagreement as to whether the impacts of the proposal are consistent with impacts that may be reasonably expected for development consistent with the surrounding R3 Medium Density zoning and the site's context.
Having attended the site and surrounding areas, having closely read the material and having heard the expert evidence in addition to considering the written material, I am of the opinion that the local area is characterised by a variety of land uses and building types. These range from low to medium density residential development as well as larger institutional buildings. While I accept that the site is surrounded by the R3 Medium Density Zone and that, to some extent, the surrounding character is determined by that zoning, on any view, that zoning only generally permits buildings up to 12 metres (except the site immediately adjacent to the east of the site). It is accepted by the experts that a 12 metre height limit could accommodate three or four storey buildings.
In accepting the applicant's experts' evidence and the submissions of the applicant summarised above in relation to compatibility, I have closely considered the architecture and urban design report and in particular the detailed site and context material which assists in understanding the general character of the area and the surrounding built forms. Although the subject of some criticism by Council's experts, that study includes a ground-level analysis of surrounding development, a building height analysis, a land use analysis, an existing built form audit and a view impact analysis, all undertaken in relation to all built forms within a 400 metre radius of the site. While I accept that this material was prepared to show the background to the final design of the proposal, it provides a considered analysis of surrounding building heights, surrounding built form, local streetscape analysis (including boundary interfaces) and consideration of various area characteristics, including existing building typologies and details of boundary interfaces.
In relation to neighbourhood character, I accept that the ADG, which does not apply to the RACF building, provides some guidance for consideration of local character and context in Pt 1B (noted at [14] above) in determining "neighbourhood scale". Part 1B provides that it is appropriate to address scale, albeit for "individual or small groups of apartment building sites" and that a radius of 400 metres to 1 kilometre should be considered. In those circumstances, I accept the applicant's evidence that it is appropriate (as the applicant has done) to consider local neighbourhood developments within a radius of 400 metres.
Consideration of both the documentary material before the Court and observations made at the site inspection indicate that there are clearly a variety of building forms of various heights. In particular, there are a number of buildings of four storeys and above within a 400 metre radius of the site. While I do not consider that this is a determinative matter, I accept that it is a matter which is appropriate to take into account in my consideration of the evidence. Suffice to say that generally, buildings within 400 metres of the site range from one to four storeys. The applicant's evidence also provides uncontested mapping of built form which shows up to 23 buildings of four storeys or higher within a 400 metre radius of the site.
I consider that while there is some consistency in local streetscape due to a relatively regular domestic residential scale, I do not consider that there is a singularly consistent scale in terms of spatial definition. I accept the applicant's expert evidence that the streetscape has a variable scale arising from built form that ranges between one to four storeys in the immediate vicinity of the site.
While I accept that the proposal on any view is relatively dissimilar to that of its surrounding neighbours, I consider that it does appropriately address each of its immediate and more distant neighbours. I consider that the built form, which is three to four storeys high, utilises a smaller scale around the northern and eastern edges which I accept responds to the context. Where the ILUs have a fourth storey, this is generally set back. Further, I accept that the four storey RACF building, being on the south western corner, is furthest away from the built form around the site. I also note that Mr McDonald accepts that Building A1 appropriately responds to its setting. In a similar fashion, I find that each of the ILUs responds appropriately to neighbouring development.
Although it is said by Messrs Johanssen and McDonald and submitted by Council that some of the surrounding buildings including the St Mary - St Joseph Catholic Primary School and the shop top housing on the corner of Mons Avenue and Malabar Road are exceptions to what would otherwise be the local character and sub-division character, I consider that the presence of those buildings and indeed the number of other larger buildings in the vicinity (at least within 400 metres of the site) are properly considered part of the character and nature of the locality. Consequently, I am of the view that the impacts are consistent with the impacts that may reasonably be expected for development within the surrounding R3 Medium Density Zone.
In reaching this view, I have taken into account the fact that the SEPP (HS) permits the development and, as stated above, while I accept the submission made on behalf of Council that use does not necessarily equate with form such that the permissibility of the site does not invite or embrace a form that is incompatible, I take into account and accept the submission of the applicant summarised above that a site of 10,000 square metres would otherwise require (in accordance with cl 6.12 of RLEP) the preparation of a DCP, a matter which has been addressed by the Concept Plan Development Application. This provides an opportunity for more strategic planning consideration. Further, I accept that sites within the R3 Medium Density Zone allow buildings up to four storeys and the zone opposite (the location of the primary school), being the SP2 Infrastructure Zone, has no separate height or FSR controls. Although there is no longer a contention in relation to the requirement to prepare a discrete DCP (otherwise arising pursuant to cl 6.12 of RLEP), I am of the view that the proposal does in fact address the matters otherwise requiring consideration in cl 6.12(4). I consider that the proposal responds to the opportunities and constraints on the site.
It is well accepted that any debate about height and bulk can only be meaningful against the background of local planning controls including maximum height, FSR, site coverage and setbacks. The questions that must be asked are: whether the impacts are consistent with impacts that may reasonably be expected under the applicable controls; whether the area has a predominantly existing character and whether planning controls are likely to maintain it; and, importantly, whether the proposal fits into the existing character of the area. These tests are well-known (Veloshin v Randwick Council [2007] NSWLEC 428) and are frequently applied by this Court. As I have noted above, the site, given its size and understanding its historical use, has not been the subject of controls that would otherwise be expected to apply. While I take into account the fact that the SEPP (HS) determines use and not form, one cannot escape the fact that that which is proposed has, to some extent, a form driven by its function. I find that the impacts are appropriately consistent with that which may be expected and while the proposal does not replicate the surrounding development in the neighbourhood, it fits with the existing character.
There was some debate regarding the SCC and in particular whether, in understanding the detail in Sch 2 thereof (see [9(2)] above), the Court could or should consider the application made to the Department of Planning for the SCC. I have considered this application, however in light of the expert evidence before me, I have given it little weight. I consider that the Court must be satisfied that a SCC has been issued (in this matter by the Director-General) and relates to a development for the purpose of seniors housing of a kind proposed and that it is compatible with the surrounding environment having regard to the matters in cl 25(5)(b). Further, pursuant to cl 24(3)(a)(ii) of SEPP (HS), as noted above, the Court is not constrained such that it is able to refuse consent based upon its own assessment of compatibility of the proposed development with the surrounding environment.
For abundance of caution, I am of the opinion that first, the SCC has been properly issued and that subject to some debate about whether the certificate issued on 12 September 2017 (in particular Sch 2 thereof) requires some closer consideration, I have, in any event, given consideration to the concerns relating to height, bulk and scale, flooding, traffic, flora and landscaping (noting that potential contamination and geotechnical hazards are not in issue) noted in Sch 2 when considering all of the evidence. Insofar as applicable, I am of the opinion that the proposed development is compatible with the surrounding land in relation to each of subpars (i)-(vii) of cl 25(5)(b) of SEPP (HS).
In relation to the disagreement between the experts regarding compatibility, I note that Mr Johanssen accepted that he had not provided detailed reasoning for a number of his opinions which were relatively compendiously articulated in various paragraphs of the joint report. Although detailed reasoning is not provided by Mr Johanssen, I accept that his opinions were properly held and they were based upon his experience and while unfortunate that his reasoning is not fully articulated, the lack of reasons could also be attributed to the form the experts adopted in relation to the expression of their opinions. In any event, in accepting that the proposal is compatible, I accept the evidence of the applicant and the submission that in considering compatibility, it is appropriate to consider that SEPP (HS) facilitates seniors housing development including dwellings or residential flat buildings but also residential aged care facilities which, by their nature, will likely have a different appearance to residential flat buildings.
While it was accepted by the experts that compatibility is different from sameness and it is generally accepted that buildings can exist in harmony without having the same density and scale of appearance, as the differences in these attributes increase, harmony is harder to achieve. Mr McDonald opined that the development (in particular the RACF building) was neither in harmony with the buildings around it or the character of the area. In this regard, I prefer the evidence of Mr Goode and find that the proposal's impacts on surrounding development are acceptable, particularly given that Council no longer contends that overshadowing is an issue and the proposal meets or exceeds the relevant DCP and ADG controls in relation to setbacks and site coverage, indicating that sufficient harmony exists.
I note that it is frequently stated that in determining whether a proposal is compatible with its surroundings, the question, simply stated, is whether the proposal's physical impacts on surrounding developments are acceptable, and whether the proposal's appearance is in harmony with the buildings around it and the character of the street: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ('Project Venture Developments') at [24].
Given that the earlier concerns of Council in relation to overlooking and overshadowing are no longer pressed, and having considered all the evidence in this regard, I find, to the extent necessary, and not without some anxious consideration, that the proposal is in harmony with its immediate context and the buildings and character of neighbouring streets. That said, there is no doubt that this proposal will be noticeable and different to development in the vicinity given the very nature of its design, its location and indeed its size.
Ms Reid on behalf of Council confirmed that Council did not have concerns in relation to materials and finishes or internal amenity. The remaining concerns related to bulk and scale (with the exception of Building A1). I find that the external treatment of the proposal, in particular the breaks in the built form and the elevations of Buildings A1, A2 and B, address the frontage widths of properties on the other side of Malabar Road. The built form and scale of Buildings A1 and A2 as they present to Rossiter Lane, being now separated into two distinct building elements, combined with the six metre setback in Rossiter Lane, in my view, ensure that the built form to some extent reflects the grain of the lots directly across Rossiter Lane and reduces the perceived scale of Building A1 from Rossiter Lane. As such, I find that the proposal is compatible with its surrounding environment pursuant to cll 24(2)(b) and 25(5)(b) of SEPP (HS).

[18]

Neighbourhood amenity and streetscape

In making my findings above, in accordance with cl 32 of SEPP (HS), I have had regard to the principles set out in Div 2 (being cll 33-39) and although there was some debate between the experts as to what was in fact a "desirable" element of the location's current character, I am of the view that the proposal does recognise such elements.
The applicant's position in relation to cl 33 of SEPP (HS) is that because the setbacks are consistent with the RDCP and ADG, overshadowing and privacy are no longer in contention. Further, given that the building form and size respond to the site's landform as well as the architectural treatment of Buildings A1, A2 and the RACF building, cl 33 is properly addressed. Mr Johanssen maintains that recognition of the character and setbacks (more particularly in the architecture and urban design report) is "selective" in that desirable elements do not give adequate regard to the principles set out in Pt 3, Div 2 of SEPP (HS), particularly in terms of neighbourhood amenity and streetscape. Mr McDonald contends that the proposal does not recognise the desirable elements of the current character of the locality. For the reasons stated above, I do not accept either Mr McDonald's or Mr Johanssen's view in this regard and I accept the applicant's submission that save for a few comments in relation to what may be "desirable elements", Council's experts did not articulate with any specificity what they contended to be "desirable elements".
In addition to my finding at [54] above, I accept the applicant's position that the location of the largest building, the RACF, is situated on the part of the site where the ground level is lower than the level of Malabar Road and Mons Avenue and that this reduces the perception of the RACF's bulk and height. Given the agreement between the experts as to the compliance with various aspects of the ADG and setback requirements of the RDCP, I find that adequate regard has been given to neighbourhood amenity and streetscape (as well as visual and acoustic privacy, solar access and design for climate, stormwater, crime prevention, accessibility and waste management).

[19]

Design quality of residential apartment development

Although Council contended that the development applications be refused because the proposal is inconsistent with the design quality principles in SEPP 65 and the relevant design objectives and design criteria of the ADG, I do not consider this to be determinative. As noted above, while Mr Johanssen suggested that the applicant "selectively" represented certain planning controls that maximised development potential without sufficient consideration of context, I do not accept this. First, as noted above, Mr Johanssen has not articulated the reasons for his opinions as submitted by the applicant, and, further, although it is suggested by Mr Johanssen that there will be a substantial change in character as a result of the development, this is a matter which necessarily arises from the nature and type of use that is permissible pursuant to SEPP (HS). I repeat my findings regarding compatibility above.
I also note that all experts were in agreement that any concern in relation to view impacts related to immediate view impacts with regard to streetscape, rather than longer, wider district, water or iconic views.
While it was agreed that in terms of immediate views, the proposal would have an impact compared to what is currently on the site, I accept that this would be the case for any likely development of the site. Having considered the material including the view loss material and the material prepared by and on behalf of the resident objectors, and having attended the site, to the extent that there would be visual or view impact, I find that the impact is acceptable.
To the extent that there remained a concern that the proposal is inconsistent with design quality principles including aesthetics with regard to the quality of building materials, I accept the applicant's evidence that the materials chosen for the finishes and presentation are appropriate and sympathetic to the surroundings and that the mix of brick and render finishes is consistent with the materiality of existing streetscapes. As noted above, Ms Reid accepted that Council did not maintain a concern regarding materials and finishes. I also find that the concerns of Mr Johanssen in relation to activation of the surrounding public domain are, in my opinion, addressed by the fact that activation is able to be achieved through the provision of a through-site link which is an improvement when compared with the existing situation.

[25]

Public interest

In considering community responses to an application such as that before the Court, an evaluation must be made of the reasonableness of the perceived adverse effects on, inter alia, the residents' amenity. The concept of amenity is wide and the statutory scheme under the Planning Act gives effect to the broadest conceivable scope of "likely impacts" of a proposed development. An evaluation of reasonableness includes identifying objective evidence that can support a factual finding of an adverse effect on the amenity of the objectors, many of whom are local residents.
In relation to the extensive objector evidence, it is clear that the proposal will result in a noticeable change to the site and the manner in which it is used. The Court is required to consider the local residents' evidence and give it appropriate weight as it forms part of the public interest consideration of the proposal. I have considered the extensive objections lodged with Council in respect of the proposal and have received oral evidence at the site inspection.
The majority of the residents' objections were bona fide, considered and well presented. However, the expert evidence before the Court has to a large extent addressed the specific matters properly raised by the objectors, and the experts were present on site during the oral submissions of the representative objectors. Although there will be discernible effects that will result from the proposal, particularly as it introduces a form of development that is both obvious and at variance with the surrounding development, the evidence of the various experts leads me to the view that the amenity and other impacts the subject of the residents' complaints are not sufficient on their own or in a cumulative sense to warrant refusal of the development applications. I am satisfied on the evidence before me for the reasons given above that the proposal and the conditions now agreed between the parties adequately address the concerns raised by the objectors. In particular, I am satisfied, based on the evidence and the specific response from Council during the hearing, that the surveys upon which the expert traffic material was based were conducted appropriately and considered the varying demand for parking and traffic fluctuations in the vicinity. Further, I am satisfied that the relationship and distance between the eastern element of Building B and the residential development opposite it at 150-170 Mons Avenue adequately address the concerns of the residents.

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Judgment (28 paragraphs)

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