Cowan Development 40 Pty Limited v Ku-ring-gai Council

Land and Environment Court (NSW)|2020-06-10

Judgment

This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the deemed refusal of development application no. DA0030/19 ('DA') by Ku-ring-gai Council ('Council') for a seniors housing development at 60 Cowan Road St Ives, legally described as Lot 4, DP20586 ('site').

The site and setting

I rely on Council's Amended Statement of Facts and Contentions ('Ex 1') and the Applicant's outline of submission filed 10 June 2020 ('AOS') for much of the material in this and the following two descriptive sections of the judgment.
The site is near rectangular in shape, having frontage to Cowan Road of 22.855m, depth of 60.96m and a site area of 1,390m2. The site is quite level, with a slight fall from the central area towards the front and rear boundaries, and it contains a number of trees, the largest located at the rear. There is a strip of area along the southern boundary of the site identified as biodiversity significance under the applicable Ku-ring-gai Local Environmental Plan (Local Centres) 2012 ('LEP').
The site is currently occupied by a brick dwelling house, two-storey in part. A carport at the front of the house is accessed from a driveway adjacent the southern boundary. Existing vegetation filters views into the site from Cowan Road.

Statutory considerations

The site is located within what might be described as a strip of R3 Medium Density Residential zoned land along the western side of Cowan Road under the LEP. Land to the west of the site and to the east across Cowan Road is zoned R2 Low Density, under a separate environmental planning instrument (Ku-ring-gai Local Environmental Plan 2015). A strip of land to the immediate south of the site which provides an accessway to a multi housing development to the west (rear) of the site, also falls into that R2 zoning.
The proposal relies on State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ('Seniors SEPP'). Relevant particulars of the SEPP are introduced below.
Ku-ring-gai Local Centres Development Control Plan ('DCP') also applies and arose in evidence.

The proposal

The application before the Court seeks consent for the demolition of the existing dwelling and associated structures and the construction and strata subdivision of a two storey seniors living development incorporating six in-fill self-care housing units and basement parking for 11 vehicles, associated stormwater management along with other infrastructure provisioning and nominated landscape treatments.

Relevant background

The original development application sought consent for a three storey seniors development comprising eight units. It was this application which was the subject of the original contentions raised by Council. Following amendments to the application, altering the proposal to a two storey form (and six units) along with certain other changes (for which leave was granted by the Court on 5 June 2020), the experts giving evidence in the case have come to an agreed position that the application addresses all of the contentions raised. Council, in turn, determined that it would no longer press the contentions.
A number of lay submissions were made, in particular from neighbours, objecting to the proposal. It is necessary that I give fair consideration to these submissions in the evaluation of the application before me. The bulk of the hearing was concerned with my interrogating the experts in regard to: issues raised in lay submissions, along with statutory considerations relevant to the determination. In the consideration of issues below I first go to the statutory questions and then turn to the examination of the issues raised by objectors.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

The DA seeks consent under Ch 3 of Seniors SEPP. Clauses 15 and 16 permit development for the purposes of seniors housing on land zoned primarily for urban purposes if it is carried out in accordance with the policy. Seniors SEPP nominates certain pre-requisites before consent to a DA may be issued under Ch 3.

Site-related requirements

I can advise that based on written evidence provided to me, and having regard to the plans and agreed conditions, I am satisfied as follows:

Regarding cl 26 of the Seniors SEPP and access to facilities, that there will be compliant access to shops, bank service providers and other retail and commercial services that residents may reasonably require, as well as community services, recreation facilities, and the practice of a general medical practitioner (Joint Expert Report on Access, Ex 4, p4-5).
Regarding cl 27 of the Senior's SEPP, the site is not "bush fire prone land" under the LEP (Statement of Environmental Effects, Ex A, p18).
Regarding cl 28, that reticulated water and adequate facilities for the removal or disposal of sewage would be available.

Clause 29 also requires consideration of the criteria referred to in cl 25(5)(b)(i), (iii) and (v) of the Seniors SEPP. These criteria are concerned with a proposal's compatibility with the surrounding land uses, and explicitly having regard to: (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, … (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,
I have had regard to these considerations. The issues raised in subcll (i) and (iii) above are addressed in the assessment of the issues raised by objectors (see below). The issues raised in subcl (ii) are considered above with regard to access to services and infrastructure.

Design requirements

I am satisfied that the Applicant has taken into account the site analysis prepared for the application in accordance with the requirements of cl 30, as evidenced in the documentation supplied.
Clause 31 requires me to take into consideration the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development ('Guideline'). I have undertaken a review of the Guideline in the preparation of this judgement. I also note the advice of the experts in regard to the Council's Contentions 6 and 12 which related to this issue (Joint Expert Planning Report Ex 3, p8 and Joint Landscape Report Ex 5 p5). I consider the relevant merits-related questions concerning cl 31 below when considering the objector submissions.
Clause 32 provides that consent must not be granted unless adequate regard has been given to the design principles set out in cll 33-39. Those principles address matters such as streetscape, visual and acoustic privacy, solar access and stormwater impacts, and I consider them relevantly below when considering the objector submissions.

Development standards to be complied with under the Seniors SEPP

Part 4 of the Seniors SEPP nominates development standards to be complied with. The experts agree, and I accept, that there is a development standard contravention with respect to cl 40(4)(c) which is concerned with building height. This contravention is considered below.
Clause 41(1) establishes certain required standards for self-contained dwellings. The requirement for compliance with these standards is established in the draft conditions prepared by the parties (Condition 32).
Clause 50 specifies grounds that cannot be used to refuse development consent for self-contained dwellings and are referred to relevantly in the evaluation of objector concerns below.

Consideration of contravention of development standard

Clause 40(4)(c) of the Seniors SEPP provides that: 40 Development standards - minimum sizes and building height …. (4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted - … (c) a building located in the rear 25% area of the site must not exceed 1 storey in height.
Residential flat buildings are not permitted in the R3 Medium Density Residential zone and the proposed development seeks consent for development that would breach the one storey limit within part of the rear 25% of the site.
The permissive powers at cl 4.6(2) of the LEP apply here, even though the contravention is related to the Seniors SEPP (Ku-ring-gai Council v Pathways Property Groups Pty Ltd [2018] NSWLEC 73).
To open the gate to the application of these permissive powers, mindful of cl 4.6(3) of the LEP, the Applicant has prepared a written request (dated 29 May 2020 and prepared by Boston Blyth and Fleming - Ex K, Attachment 1) seeking to justify the contravention of the development standard at cl 40(4)(c) of the Seniors SEPP.
I have considered the written request. I am satisfied that it demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (LEP cl 4.6(3)(a)). The written request shows how the development is consistent with the objectives behind the standard notwithstanding the contravention. While there are no specific objectives nominated for the development standard at cl 40(4)(c) of the Seniors SEPP, the written request's identification of the underlying objectives is satisfactory. The written request relied on the findings in Manderrah Pty Ltd v Woollahra Municipal Council and Anor [2013] NSWLEC 1196 ('Manderrah'), where Tuor C found (at [70]) as follows: "The primary objective of cl 40(4)(c) is to limit the bulk and scale of a building to protect the amenity of the rear of adjoining properties. Placing built form into the rear of a property which generally forms part of its open space and adjoins the open space of other properties to the side and rear can have significant impacts on amenity not only from loss of solar access, privacy and views but also from the presence of increased or new building bulk and the removal of landscaping."
The written request examined the amenity considerations raised in Manderrah (at [70]) for the properties in the vicinity of the rear of the site (ie the areas with potential affectation by the height contravention). This included examination of solar access, privacy, views, and visual outlook with respect to relevant neighbouring properties. In each instance it was found that there was no unreasonable amenity impact due to the height contravention. This was a result of either the physical arrangement of neighbouring properties with respect to the subject site, or the detailed design particulars of the proposal. The written request has established to my satisfaction that the objective of the height standard has been achieved with the proposal notwithstanding the non-compliance.
According Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (at [42]-[51]), and as confirmed in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), establishing that the objective of a development standard has been achieved notwithstanding non-compliance with the standard is one means of demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In turn, my conclusion here is that the proposal satisfies the requirement of cl 4.6(3)(a) of the LEP.
I am also satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b)). The written request considers the height contravention in light of the following two objects of the EPA Act: (c) to promote the orderly and economic use and development of land, … (g) to promote good design and amenity of the built environment,
The written request indicates that compliance with the height of building standard would result in a reduced apartment yield and an FSR of some 0.56: 1. This was compared to the otherwise applicable FSR of 0.8:1 under the LEP. It was also suggested that a single story built form consistent with the development standard would sit over 8m below the prescribed 11.5 m building height control in the LEP, otherwise applicable to the site. The conclusion was that strict compliance would not promote orderly and economic use and development of the land given the applicable R3 Medium Density Residential zoning and the height controls which apply otherwise in the locality under the LEP. The written request then linked this consideration to its earlier conclusions that, as a consequence of good design, the contravening element of the building does not bring about adverse amenity impacts to neighbouring properties. In my evaluation, there are sufficient environmental planning grounds to justify the proposal's contravention of the two-storey height control for the rear 25% of the site.
For the reasons outlined above and having regard to cl 4.6(4)(a)(i) of the LEP, I am satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated under cl 4.6(3) of the LEP.
I am also satisfied that the proposed development is in the public interest because it is consistent with: (1) the objectives for development within the applicable R3 Medium Density Residential zone, and (2) the objectives of the two-storey height standard for the rear 25% of the site.
In regard to the objectives of the standard I adopt the finding above (at [26]-[27]), where I consider the same question in light of the content of the written request.
There are four nominated objectives for the R3 Medium Density Residential zone in the LEP: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide a transition between low density residential housing and higher density forms of development.
In regard to the first objective, the proposal would, on its face, provide for the housing needs of seniors and people with disabilities within a medium density residential environment. In regard to the second objective, the proposed housing form here is one of a number of housing types permissible within the zone and which provide variety in that medium density environment. The third objective is not relevant to this application. In my opinion, the fourth objective is best seen as an explanatory objective, similar to that described in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 ('Baron') [32]. It is explaining the R3 Medium Density Residential zone's juxtaposition with the R2 Low Density Residential zone and R4 High Density Residential zone. The proposal would contribute to the achievement of this zone objective and provides an appropriate transition to the R2 Low Density Residential zoned land nearby.
I therefore also satisfied regarding cl 4.6(4)(a)(ii) of the LEP.
Turning to cl 4.6(4)(b), the Court is not required in this instance to seek the concurrence of the 'Planning Secretary', but I note here that I am satisfied the proposal does not raise any matter of significance for State or regional environmental planning.
The states of satisfaction required by cl 4.6 of LEP have been reached in regard to the contravention of the Seniors SEPP's cl 40(4)(c). There is therefore power to grant development consent to the proposed development notwithstanding the breach of this development standard.

Ku-ring-gai Local Environmental Plan (Local Centres) 2012

The LEP itself raises a limited number of other relevant jurisdictional questions. Council's development engineer informed me satisfactorily in regard to the matters raised in regard to earthworks at the LEP's cl 6.1, and I am satisfied that the consent conditions respond appropriately, including through reference to the geotechnical report prepared for the proposal (Condition 1 refers to JK Geotechnics Report dated 15/10/2018).
Clause 6.2 is concerned with stormwater and water sensitive urban design ('WSUD'). The objectives are to "to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems". Under subcl (2) before granting consent the consent authority must be satisfied that: (a) water sensitive urban design principles are incorporated into the design of the development, and (b) riparian, stormwater and flooding measures are integrated, and (c) the stormwater management system includes all reasonable management actions to avoid any adverse impacts on the land on which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems, and (d) if a potential adverse environmental impact cannot be feasibly avoided, the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems.
WSUD principles are explained further at cl 6.2(3) of the LEP.
Mr Guerrera, Council's engineer and access expert, explained the stormwater and WSUD principles of the project including the provision for a water quality and gross pollutant trap system, arrangements for a rainwater tank and water reuse, and the stormwater detention arrangement (located in the driveway to reduce risks to trees) which would assist in managing major storm and flood events. I am satisfied in regard to cl 6.2(2).
Clause 6.3 of the LEP is concerned with biodiversity protection. This clause applies to certain land identified in the LEP's natural resource-biodiversity map. An area along the southern boundary of the site is identified as of biodiversity significance in this map. Under cl 6.3(3), I need to consider the impact of the proposed development on certain biodiversity nominated considerations, along with proposed measures to ameliorate any potential adverse effect, and opportunities to restore or enhance remnant vegetation. This matter is considered below with objector concerns.

Other jurisdictional considerations

Having regard to cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), I am satisfied with the consideration given to whether the subject site is contaminated. Council's specialists have taken the view that there is no likelihood of potentially contaminating activities occurring on the site given its history of residential use.
I mention briefly that jurisdictional queries were raised in Council's contentions (relating to owner's consent and the acceptability of the application) but have since been resolved. I accept the resolution of the issues as explained in the AOS (par 13-33). I further note that I certainly agree with Mr Staunton (AOS, par 55-65) that the "do not refuse" FSR threshold of 0.5:1 in cl 50(b) of the Seniors SEPP is not a development standard and that exceedance of this FSR threshold does not require a variation request under cl 4.6 of the LEP.

Lay submissions

Some concerns raised in lay submissions were no longer applicable as a consequence of the amendment to the application. In particular, issues raised which relied upon State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ('SEPP 65') no longer had weight in a statutory sense. This was because development needs to be at least three storeys in height (above basement) for SEPP 65 to have application (cl 4(b)). After the final amendments, the application comprised only two storeys.
I can group the issues raised in lay submissions into six: (1) height, scale and positioning of development in the setting including consequent amenity effects, (2) tree loss, (3) traffic and parking, (4) risk of physical effects on adjoining land, (5) site isolation, and (6) other issues.

Physical form and positioning of the building

Objectors raised concerns about streetscape, building height, setback, overshadowing, visual bulk, and privacy.
The experts explained to me that it was the recent reduction in height and scale of the development (from 3 to 2 stories) which brought about their agreement that the proposal was satisfactory in regard to these concerns of the residents. However, my role here is to give consideration to the application before the Court now, regardless of its history.
In considering the height, scale and positioning of the development, it is reasonable for me to have regard to the existing applicable controls. The experts advised that the background controls to this site include both height and FSR standards considerably greater than that currently propose with the application. A comparison between these background controls and that currently propose with the application is provided above (at [30]).
Turning to side and rear boundary setbacks, the advice from the experts is that the DCP contemplates a rear setback of 6m, as has been adopted with this proposal. The setback to the northern boundary is also 6m to the line of floor of the building. The southern boundary of the site abuts land not occupied by housing (and rather, in use as a driveway in a landscaped setting) and has a varied but lesser setback (minimum 4.86m to line of floor according to Ex H, Drawing A06B).
The front setback, and its relationship to streetscape was also a matter of direct evidence. A concern of objectors was that reduced front setback would result when compared to the existing generous setting, and that immediately adjoining properties also had deeper front setbacks than the proposal. Having viewed photographic evidence, I accept the evidence of the experts that there is "variety of front setbacks for development in the area" (Planning Joint Experts Report, Ex 3 par 20), and their conclusion that (ibid): The variety of front setbacks, together with the modified two storey form proposed, result in agreement that the proposed setback and built form of the amended development is acceptable in a streetscape context.
I am also satisfied with the extent of articulation in the northern and southern facades of the building. This articulation involves a variation in boundary setbacks, certain vertical architectural elements, and the fact that existing and proposed vegetation would filter views to the building from neighbouring properties
Turning to solar access, the experts referred to solar access diagrams which demonstrated a satisfactory response (Architectural Plans, Ex H Drawing A09C). This was largely a consequence of the setbacks which had been adopted in the design.
With regard to visual privacy, the experts referred to the configuration of privacy screening devices on windows and balconies (Ex H Drawing A04E for example). There was agreement between the planning experts that this arrangement would ensure visual privacy was reasonably maintained, also having regard to the extent of edge landscaping that would remain along the western and southern boundaries and proposed landscape planting. The tall hedge along the western boundary was particularly notable. I raised the question of the balcony at Level 1 (to Unit 4) which orients to the north and 62 Cowan Road and to an extent 76 Killeaton Street. The proposal is that some 50% of this balcony would be subject to a privacy screen. Evidence from the landscape experts then confirmed that evergreen screen planting was also proposed along this northern boundary (Blueberry Ash to 7m height - Landscape Plans Ex J). I am satisfied in regard to visual privacy.
In regard to acoustic privacy, I note expert acoustic advice (Ex N) which has been prepared in response to Council's contentions. I accept the planning evidence that the proposal would satisfy normal requirements. Conditions of consent require preparation of a further acoustic design report (Condition 35) and impose standards in regard to noise from air conditioning, mechanical exhaust ventilation, mechanical plant and rainwater re-use system (Condition 109-112), each aimed at protecting the amenity of surrounding residents.
The objector concerns in regard to streetscape impact, building height, building setback, overshadowing, visual bulk, and visual and acoustic privacy have all been adequately addressed in the expert evidence.

Traffic and parking

Council specialists examined traffic and parking considerations in the assessment of the application, and these were not issues raised in Council's contentions. I am satisfied with the positive findings of Council's assessment in regard to traffic and parking and the conclusions in regard to expected quite low vehicle trip generation rates (Council's Bundle of Documents Ex 2, folio 163).

Tree loss

There was a general concern about tree preservation from neighbours. A key concern was whether the proposal would put a line of eucalypt species along the southern boundary at risk. The objectors were concerned that in practice the extent and depth of excavation would be greater than that shown in drawings. I note that State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 came up in evidence and I mention that I have had regard to it.
T Dobson, a landscape architect and arboriculture expert, prepared an arboricultural impact assessment report for the proposal (Ex F), and gave oral evidence. I Francis gave oral evidence in regard to arboriculture and landscape for Council. These two experts also prepared a joint report in response to landscape and architectural consideration (Ex 5). In Ex F, Ms Dobson found that of 28 assessed trees (including numerous trees on the land to the immediate south), 25 would be retained with general and specific tree protection measures (Ex F, p11). Three trees would be removed. One of these trees is dying and two other trees required to be removed have a protection status under the DCP. The proposal includes compensatory tree replenishment activity for this tree removal (Ex J, DA-L01B). Mr Francis accepts the proposed arrangement as satisfactory, including in regard to tree protection zones.
I asked the arboricultural experts and, relevantly, the planning experts to respond to the particular concern raised by objectors in regard to the southern eucalypts, in particular that site excavation may be much greater than indicated in the plans accompanying proposal. The planners evidenced that the extent of excavation was limited to that indicated in the application and conditions. I also accept the evidence of the agricultural experts that the extent of excavation indicated in the proposal was consistent with their expectations for development of this kind and that conditions of consent were proposed to ensure protection of the group of eucalypt to the south of the site. Agreed conditions 13-20, 34, 45 and 64-70 are concerned with tree protection, including requiring regular inspections during construction stage aimed at ensuring tree protection.

Risk of physical effects on adjoining land

Concerns were raised that the proposed development would cause damage to adjoining properties including through excavation works extending beyond the approved works and through structural requirement basement "ground anchors" extending into neighbouring properties. A further concern was that cranes would swing construction material over private property boundaries. Consent to the subject application would give no rights to undertake works on adjoining land. Conditions of consent include requirements to undertake dilapidation surveys with respect to the driveway access for 58 Cowan Road and the southern side of the building at 62 Cowan road (Condition 7). A further condition of consent specifically nominates that should there be an intention to use cranes, there is first a requirement for a Crane Permit to be issued by Council. In any event, the condition provides that cranes are not to overhang adjoining properties at any time (Condition 79).

Other matters

One objector sought clarity on fencing. The plans indicate "1800 high fence to boundary" as part of the proposal. Condition 83 provides that all side boundary fencing shall be 1.8m high timber lapped and capped fencing and that fencing forward of the building line has a height no greater than 1.2m.
Construction management requirements have been imposed to the satisfaction of the experts. I note Condition 21 requires preparation of a noise and vibration management plan to identify amelioration measures to achieve the best practice objectives of Australian Standard 2436-2010 - Guide to noise and vibration control on construction, demolition and maintenance sites, among other controls. Specific requirements are also listed in regard to construction stage dust control (Condition 51). While it would be unreasonable to expect construction projects to cause no nuisance to neighbours, I am satisfied that the conditions of consent as proposed introduce reasonable limitations and can cushion the effects adequately.
An adjacent property owner raised a concern that development of the subject site might result in reduced development prospects for that property. The concern was that the adjacent property was "under the minimum lot size" for certain forms of medium density development. I agree with the experts that there are redevelopment prospects for this (adjacent) site should that be the intent of the owner. I am not convinced that this concern should have weight in regard to the application before me.

Conclusion

The experts are as one that all the merits-related contentions raised by Council have been adequately addressed through amending plans and the conditions of consent agreed by the parties (filed 23 June 2020). I further find that statutory questions are addressed and there is jurisdiction to approve the application. Further, and as indicated above, I find that the adequate consideration has been given to submissions by the objectors.
I am satisfied that the application is acceptable and should be approved subject to the conditions at Annexure A.

Orders

The orders of the Court are: 1. The Applicant's written request, dated 29 May 2020, prepared by Boston Blyth and Fleming, and made pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan (Local Centres) 2012, seeking a variation of the development standard for building height at clause 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, is upheld. 2. The appeal is upheld. 3. Consent is granted to development application no. DA0030/19 for demolition of existing improvements and construction of a seniors living development comprising 6 units including strata subdivision under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 60 Cowan Road St Ives (Lot 4, DP20586) subject to the conditions at Annexure A. 4. The exhibits are returned with the exception of Exhibits A - Q, S, W and 6.

Commissioner of the Court Annexure A (344242, pdf) Architectural Plans (4689916, pdf) Landscape Plans (5667184, 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: 23 July 2020

(2007) 156 LGERA 446

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (6)