Collaroy Living Pty Ltd v Northern Beaches Council

Collaroy Living Pty Ltd v Northern Beaches Council - [2024] NSWLEC 1352 - NSWLEC 2024 case summary — Zoe

[4]

The proposal

On 22 March 2024, the Court granted leave for the applicant to amend its Development Application to rely on amended plans and documents (March Amendments). The March Amendments are contained in Ex B in these proceedings and primarily relate to: 1. reducing the number of independent living units from 11 to 10; 2. amending the architectural presentation of the development to read as five distinct pavilions; 3. increasing the setbacks so that the Hay Street facing pavilions are separated by 4m setbacks and the Anzac Avenue setback is increased to 6.5m; 4. reducing the gross floor area (GFA) from 2,053.2m2 (floor space ratio (FSR) 0.72:1) to 1,570.43m2 (FSR 0.55:1); 5. moving the vehicular access ramp from Hay Street to Anzac Avenue; and 6. other associated amendments to reconfigure apartments, retain trees, lower building height, increase setbacks and landscaping and improve accessibility.
On 26 April 2024, the Court granted leave for the applicant to further amend the Development Application to rely on additional and/or updated plans and documents (April Amendments). The April Amendments are contained in Ex C in these proceedings and primarily relate to: 1. reducing the excavation to the basement; and 2. amending the cl 4.6 request in respect of the non-compliance with the FSR control in the State Environmental Planning Policy (Housing) 2021 (Housing SEPP).
Prior to the hearing, the parties advised the Court that they had reached agreement as to the matters which would resolve the contentious raised by the respondent in its SOFAC (Ex 1). However, notwithstanding this agreement, the respondent wanted to proceed to a hearing so that the submissions of objectors could be considered.
Accordingly, as set out in the applicant's written submissions (at [4]): "…the Court is required to carry out a merit assessment under s 4.15 of the EP&A Act to determine if it is appropriate to grant development consent to the DA."
The matter therefore proceeded to hearing on 1 May 2024.
During the course of the hearing, the applicant sought leave to further amend its proposal to substitute a new demolition plan (Amended Demolition Plan). The effect of the Amended Demolition Plan was to remove from the proposal, the demolition of the structures on the corner lot of Anzac Avenue and Hay Street, being 43 Hay Street Collaroy (43 Hay St).
The reason for this amendment was the identification of an encroachment of the existing garage structure on 43 Hay St on to land at 993 Pittwater Road (being Lot 1 in Deposited Plan 10519) (993 Pittwater Rd). As the existing garage structure on 43 Hay St was proposed to be demolished as part of the proposal and owners consent had not been obtained from 993 Pittwater Rd, the applicant indicated that it intended to utilise a separate planning approval pathway (namely a complying development certificate) for the demolition of these structures.
The respondent consented to the amendment and a deferred commencement condition was agreed between the parties to address the issue (see Condition A1 of the Agreed Conditions). The Court granted leave to the applicant to amend the Development Application. The Amended Demolition Plan is Ex D in the proceedings.
For the purposes of these proceedings, the documents in the March Amendments (subject to specified exclusions) and April Amendments in conjunction with the Amended Demolition Plan, supersede those in the applicant's Class 1 Application (Ex A) and collectively comprise the Amended Development Application.

[12]

Legislative and planning framework

As set out at [32], the Subject Land is zoned R2 Low Density Residential under the WLEP. The R2 zone objectives to which I have had regard in the assessment of the Amended Development Application, are extracted below:

To provide for the housing needs of the community within a low density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

Section 108 of the Housing SEPP relevantly provides as follows: (1) The object of this section is to identify development standards for particular matters relating to development for the purposes of independent living units that, if complied with, prevent the consent authority from requiring more onerous standards for the matters. (2) The following are non-discretionary development standards in relation to development for the purposes of independent living units - … (c) the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less,
Section 4.15(3) of the EPA Act relevantly provides that: If an environmental planning instrument… contains non-discretionary development standards and development the subject of a development application does not comply with those standards - (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.
Section 4.6 of the WLEP (being the version of s 4.6 that applied at the date the Development Application was lodged) relevantly provides as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

[13]

Evidence

As set out in the Joint Town Planning Report, the town planning experts agreed that: 1. The Amended Development Application demonstrated a FSR of 0.553:1, being a variation to the development standard under s 108(2)(c) of the Housing SEPP of 10.6% (as opposed to the FSR of 0.72:1 comprising a 44.6% variation proposed by the Development Application as lodged). 2. The Amended Development Application included an updated written request under cl 4.6 of the WLEP, which satisfactorily demonstrated both: 1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because it is consistent with the objectives of the R2 zone and the objectives of the equivalent development standard contained within cl 4.4 of the WLEP (in the absence of objectives for s 108 of the Housing SEPP); and 2. that there are sufficient environmental planning grounds to justify contravening the development standard because the justification provided is sufficient and agreed with. 1. The amended plans demonstrate a development that is of acceptable bulk and scale, representative of the type of development anticipated by the R2 zone and the applicable controls. 2. The amended plans demonstrate a development that complies with requirement 3 set out in Section D9 Building Bulk of the WDCP, as it steps down with the topography of the Subject Land and does not rely on excessive excavation. 3. The amended plans demonstrate a development that complies with requirement 5 set out in Section D9 Building Bulk of the WDCP, as it provides suitable building separation, architectural design, and landscaping so as not to unreasonably impact upon the privacy of the adjoining properties to the east (Nos. 987, 989, 991 and 993 Pittwater Road). 4. The amended plans demonstrate a development that complies with requirement 7 set out in Section D9 Building Bulk of the WDCP, as it provides suitable landscaping to reduce the bulk and scale of the development and does not rely on unreasonable removal of vegetation. 5. The amended plans demonstrate a development that complies with requirement 9 set out in Section D9 Building Bulk of the WDCP, as it provides adequate articulation of the built form to reduce its massing. 6. The amended plans demonstrate a development that is consistent with all objectives of Section D9 Building Bulk of the WDCP.
During oral evidence, the town planners agreed that they had listened to the submissions made by residents at the site view at the commencement of the hearing in relation to issues of bulk and scale, and confirmed that their views as expressed in the Joint Town Planning Report were unchanged. Mr McNamara and Ms Ryan agreed that, in their view: 1. the Amended Development Application complies with all Housing SEPP, WLEP and WDCP controls (with the exception of FSR), including height and setbacks; 2. the cl 4.6 written request was adequate to justify the exceedance of the FSR 0.5:1 control by 10.6%; 3. the Amended Development Application will present as four dwellings of two to three storeys which is consistent with the typology of dwellings in the locality; 4. the ground floor level will be appropriately articulated to break up the perceived bulk of the development and the upper level will have pavilion elements below the height limit with pitched roofs to maintain the character of the locality and promote view sharing; 5. the Amended Development Application proposes significant landscaping; and 6. if the four lots comprising the Subject Land were developed individually, it is likely that lesser setbacks would be achieved.

[14]

4.6 request - FSR standard

As set out at [39], the FSR standard applicable to the Subject Land is 0.5:1 pursuant to s 108 of the Housing SEPP (FSR Standard). The parties agree that the Amended Development Application seeks consent for a FSR of 0.553:1, thereby exceeding the FSR Standard for the Subject Land.
The applicant has prepared a written request (Ex E), pursuant to cl 4.6 of the WLEP, which seeks to justify the variation to the FSR Standard (FSR Request).
By way of background, the FSR Request relevantly states: 1. The Subject Land is not subject to a maximum FSR development standard as might otherwise be prescribed at cl 4.4 of the WLEP. 2. The "density" of the development in the locality is managed by Pt 5 of the Housing SEPP (including s 108) and built form controls established by the WDCP, to determine a development's permitted building envelope. 3. Section 108(1) of the Housing SEPP establishes the object of the non-discretionary development standards for independent living units: 1. The object of this section is to identify development standards for particular matters relating to development for the purposes of independent living units that, if complied with, prevent the consent authority from requiring more onerous standards for the matters. 1. Section 4.15(3) of the EPA Act confirms that cl 4.6 of the WLEP may be applied to a non-compliance with s 108(2) of the Housing SEPP.
The parties agree that the FSR Request adequately addresses the matters set out in cl 4.6 of the WLEP. That is, the FSR Request demonstrates that: 1. compliance with the FSR Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the WLEP); 2. there are sufficient environmental planning grounds to justify contravening the FSR Standard (pursuant to cl 4.6(3)(b) of the WLEP); 3. the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (pursuant to cl 4.6(4)(a)(i) of the WLEP); and 4. the proposed development will be in the public interest because it is consistent with the inferred objectives of the FSR Standard and the objectives of the R2 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the WLEP).
In relation to cl 4.6(3)(a) of the WLEP, the FSR Request asserts that strict application of the FSR Standard is unnecessary and unreasonable on the basis that the inferred objectives of the FSR Standard are achieved notwithstanding non-compliance with the standard (as per Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118).
The FSR Request relevantly states: 1. It is commonly accepted that a standard for FSR is a planning tool used by consent authorities to ensure the bulk and scale of development is compatible with the existing and desired streetscape and to minimise adverse impacts on adjoining land. This approach is consistent with previous decisions where the Court did not have express objectives to consider in relation to FSR and the Court had to infer these objectives - see Zenere v Canterbury City Council [2006] NSWLEC 263; Kolin v Sydney City Council [2006] NSWLEC 552. 2. "Compliance" with the non-discretionary FSR Standard in s 108(2)(c) of the Housing SEPP is considered unreasonable and unnecessary in the circumstances of this case, given the numerical non-compliance is with a non-discretionary development standard, the objective of which is to identify development standards for independent living units that, if complied with, prevent the consent authority from requiring a more onerous standard. It is not intended as an upper limit to development, and there is otherwise no maximum FSR standard for development in this locality. 3. From a streetscape perspective, the proposed bulk and scale is appropriate because: 1. it appropriately responds to the Subject Land's topography and "steps down" with the slight fall of the land; 2. the height of the development at 8.69m is commensurate with the two storey form in the locality; 3. the form of the proposed development has been articulated to reflect the prevailing low-density streetscape, which is sympathetic to the character of the existing buildings on the Subject Land, being x4 adjoining lots that presently have 2 storey dwellings; and 4. the proposed landscaping seeks to retain and embellish the existing landscape treatment to the streetscape to provide sufficient screening and softening of the proposed built form such that the additional FSR sought is adequately absolved within the bulk and scale and not discernible from the streetscape. 1. In relation to the minimisation of adverse impacts on the surrounding land, the additional FSR has been integrated into the overall design and will not cause adverse: 1. overshadowing to neighbouring properties; 2. impacts on privacy of surrounding properties; or 3. impacts upon views from adjoining properties (see Visual Impact Study prepared by CMS Surveyors dated 5 March 2024 in relation to how the amended design has ensured key neighbouring views are retained for surrounding properties).
In relation to cl 4.6(3)(b) of the WLEP regarding sufficient environmental planning grounds, the FSR Request relevantly relies on the following environmental planning grounds in support of the proposed variation to the FSR Standard: 1. The Amended Development Application presents a strong corner expression that responds to the streetscape. The proposed development seeks a built form that maintains the predominant existing built form on the street of 2 storeys with some 3 storey elements with appropriate landscaping, materials and finishes to ensure compatibility, noting the corner to the immediate north across Anzac Avenue also has a large prominent dwelling house opposite the Subject Land. 2. The proposed additional FSR would be imperceptible in the streetscape, noting that the proposed development is otherwise compliant with the prescribed building height, setbacks, side boundary envelope and landscaping controls prescribed by the Housing SEPP, WLEP and WDCP. Further, the proposed FSR exceedance has been distributed across the Subject Land in a highly articulated and modulated 2 storey stepped building form which appropriately addresses each of its Hay Street and Anzac Avenue frontages. 3. A reduction in FSR would reduce amenity for no identifiable benefit. One of the objects of the EPA Act is to promote good design and amenity of the built environment (s 1.3(g)). The Amended Development Application has been designed to provide appropriate amenity by way of solar access and a sense of openness and views towards the ocean and headland, in addition to necessary accessibility and adaptability requirements. To remove floor space would result in a compromised design for the seniors housing residents for no planning benefit, contrary to the objective set out in s 1.3(g) of the EPA Act. 4. The Amended Development Application is consistent with the existing and desired future character of the locality, despite the proposed variation (see (1) above)). 5. The proposed variation will not result in unacceptable environmental impacts in terms of solar access, views or privacy. The proposed FSR provides a built form offering compliant levels of solar access to nearby residential development and there will not be a significant impact beyond a compliant building envelope, noting that the proposed development will have similar potential effects on water views to a built form compliant with the WLEP development standards.
In relation to cl 4.6(4)(a)(ii) of the WLEP, the FSR Request states that the proposed development is in the public interest because it is consistent with the inferred objectives of the FSR Standard (discussed at [49(1)]) and the objectives of the R2 zone (extracted at [38] above). In relation to the objectives of the R2 zone, the FSR Request relevantly states: 1. Housing for seniors is a need of the community. The Amended Development Application meets this need by providing 10 independent living units in a manner that meets relevant height controls and DCP controls for low density setbacks and landscaping. The proposal creates no material adverse impacts that would warrant refusal. 2. A detailed landscape plan has been prepared. The proposed building setbacks and significant deep soil zones provided at the periphery of the Subject Land, combined with a high standard of landscaping will ensure the development is consistent with established 1-3 storey development evidence within the streetscape.
Finally, in relation to cl 4.6(4)(b) and (5) of the WLEP, the FSR Request states that the proposed FSR exceedance raises no matters of State or regional significance, and it is considered that the proposal is compatible with existing development and the desired future character of development in the locality. There is no public benefit in application of the non-discretionary standard as an upper limit to development in the circumstances given the better planning outcome achieved, including the delivery of much needed seniors housing. No other matters are required to be taken into consideration by the Planning Secretary.

[32]

Evidence

The Amended Development Application contains a Visual Impact Study prepared by CMS Surveyors dated 5 March 2024 (Ex B, tab 4) (VIS). The VIS relevantly models the anticipated view impacts of the proposed development from properties at 32 to 38 Hay Street, Collaroy.
The town planning experts state in the Joint Town Planning Report (at [41]-[45]) that the amended plans comprising the Amended Development Application demonstrate: 1. a development that is reasonable with respect to the requirements of view sharing set out in S D7 Views of the WDCP, as guided by the planning principle established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 at [25]-[29] (Tenacity); 2. a pavilion-style typology that provides view corridors that are comparable to existing, for the benefit of properties to the west; 3. an acceptable floor space ratio which does not result in unreasonable view loss; 4. a development that is of a built form and scale anticipated for the Subject Land, as it employs appropriate building articulation, compatible with low density; and 5. a development that is consistent with all objectives of S D7 Views of the WDCP.
During oral evidence, the town planners agreed that they had listened to the submissions made by residents at the site view at the commencement of the hearing in relation to issues of view loss and confirmed that their views as expressed in the Joint Town Planning Report were unchanged. Mr McNamara and Ms Ryan agreed that they were satisfied that: 1. The landscaping proposed by the Amended Development Application had been chosen for view retention. 2. The built form assessed in the VIS was the correct built form that required assessment and there was no deficiency in the assessment. 3. The VIS was carried out in accordance with the Court's relevant policy and they agreed with the relevant survey points used in the assessment (and were present at the time it was carried out). 4. Although not expressly referenced in the VIS, the methodology prescribed by Tenacity was taken into account and incorporated in the view analysis set out in the VIS and appropriate properties had been selected for view impact analysis. 5. The Amended Development Application would result in "basically like for like view impacts" when compared to the existing dwellings located on the Subject Land.

[47]

Evidence

The traffic experts state in the Joint Traffic Report (at [2(a)-(k)]) that the Amended Development Application: 1. Provides for 10 x 3 bedroom units comprising a total of 30 bedrooms. Based on the Housing SEPP requirement of 0.5 spaces per bedroom, a minimum of 15 spaces would be required. 2. Includes 18 car spaces which exceeds the minimum parking requirements of the Housing SEPP and is therefore considered appropriate. 3. Requires a minimum of 10 accessible car parking spaces to comply with the Housing SEPP. The architectural plans indicate 10 accessible car parking spaces designed in accordance with AS2890.6. 4. Resolves concerns regarding vehicle ramp gradient following the relocation of the vehicle access driveway from Hay Street to Anzac Avenue, proposing a 6m long section at a 5% gradient in accordance with relevant standards. 5. Resolves concerns regarding sight lines following the relocation of the vehicle access driveway from Hay Street to Anzac Avenue. 6. Demonstrates that satisfactory two-way passing of vehicles including two B99 vehicles can be achieved.
During oral evidence, the traffic experts agreed that they had listened to the submissions made by residents at the site view at the commencement of the hearing in relation to issues of car parking, traffic congestion and safety and confirmed that their views as expressed in the Joint Traffic Report were unchanged. In addition, Mr Milston and Mr Korbett agreed that: 1. Construction traffic should not pose a risk to pedestrians as it would be adequately managed through compliance with a construction traffic management plan which would be required (as part of an agreed condition of consent) to be submitted to the respondent prior to commencing work. 2. Operational traffic should not pose a risk to pedestrians as the access to the proposed development, including ramps and sightlines, complies with all relevant Australian Standards. 3. The proposed development removes four existing driveways where residents were primarily required to reverse out of the driveways, with a single driveway where cars will exit in a forward direction. This is ultimately a safer outcome. 4. Further condition of consents should be imposed requiring: 1. a speedhump within the access driveway to ensure vehicles slow down prior to crossing the boundary to the footpath (now agreed condition 30A Speed Hump); and 2. the pruning of the existing street tree to the east of the driveway on Anzac Avenue to ensure it does not impede sightlines (now agreed condition 34A Street tree pruning). 1. The vehicle trips anticipated to occur as a result of the proposed development amount to 0.6/dwelling (6 vehicle trips per dwelling) per peak hour period. The level of traffic generated by the proposed development is acceptable and will not have an adverse effect on the local road network.

[64]

WLEP

Although not raised as a contention, cl 6.4 of the WLEP is relevant to the Amended Development Application as the Subject Land is identified on the Landslip Risk Map under the WLEP. Clause 6.4 relevantly provides as follows: (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the application for development has been assessed for the risk associated with landslides in relation to both property and life, and (b) the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and (c) the development will not impact on or affect the existing subsurface flow conditions.
Similarly, cl 6.2 is relevant to the assessment of the Amended Development Application as the proposed development involves earthworks and relevantly provides as follows: (3) Before granting development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
Relevant landslip and geotechnical issues are considered in the Preliminary Geotechnical Investigation and Slope Risk Assessment prepared by Morrow dated 13 March 2024 (Ex B tab 6) forming part of the Amended Development Application (Geotechnical Assessment). The Geotechnical Assessment relevantly states: 1. "The qualitative risk assessment indicates the site to have a Very Low Risk of damage to property as a result of the potential hazards identified. AGS Landslide Risk Management Concepts and Guidelines state that… as a very low risk has been established, no further investigations are required at this time" (at [4.5.4]). 2. "The stratigraphy at the site is characterised by topsoil/fill and sand with residual sandy clay overlying sandstone bedrock" (at [3.1]) and goes on to consider the results of four boreholes, including groundwater observations. 3. "Based on the geotechnical assessment of the Site, Morrow Geotechnics can conclude that the site is geotechnically suitable for the proposed development" (at [6]). 4. "Geotechnical risks associated with the following areas identified by Council can be appropriately managed by designing and constructing in accordance with the recommendations of this report…" (at [6]).
Based on the Geotechnical Assessment and agreement of the parties that all contentions regarding geotechnical suitability have been addressed and resolved by the Amended Development Application and agreed conditions of consent, in determining the Amended Development Application, I have considered the matters set out in cl 6.2(3) and am satisfied of the matters listed in cl 6.4(3) of the WLEP.

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Judgment (172 paragraphs)

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