COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2018/0071 (the DA) which seeks consent for the demolition of 2 existing structures and construction of basement car park and eight x2-storey attached units to be used as seniors living housing and other ancillary storage works (the amended DA) at 10-12 Mimosa Street, Oatley.
The applicant was granted leave to rely on amended plans on 15 February 2019, and the Council re-notified the amended plans to resident objectors on 12 March 2019.
[2]
The site and its context
The site is located at the corner of two streets with frontage to both Mimosa Street to the south and Winter Place to the east, and incorporates Lot 1 in DP 237970 and Lot 2 in DP 123593.
The site is irregular in shape, comprising the amalgamation of two lots of differing geometry. No.10 Mimosa Street is a corner allotment at the intersection with Winter Place, and a total area of 506m2. No.12 Mimosa Street adjoins the T4 Eastern Suburbs and Illawarra railway line and associated reserve having a total area of 794m2, as identified on the title, or 1055m2 as identified on the survey.
The site slopes steeply from Mimosa Street towards the rear of the site and in a northerly direction, and provides a clear view of the railway corridor to the west of the site.
Directly across from the site on Mimosa Street is the Hillcrest Nursing Home, which presents to the street as an elevated single storey development constructed over a lower ground car park that is accessed from Mimosa Street.
During a view of the site, the Court heard a submission from Mr Warwick McDonald, who expressed concern at aspects of the proposal, including:
Overlooking from Units 6, 7 and 8 would result in privacy impacts on his property
Possible overland stormwater flow resulting from the development
Additional written public submissions are contained in the respondent's bundle (Ex 2, Tab 12).
Also during the site view, the Court, at the request of the parties, walked from the site in an easterly direction along Mimosa Street to the eastern side of Oatley Parade, and then across Neville Street through the Oatley Memorial Park along the path. At a number of locations, the parties asked me to observe the condition and gradient of the path, the location of bus stops on Mimosa Street, Oatley Parade and Neville Street, and the proximity of the nearby Oatley Town Centre.
[3]
Expert evidence
To assist the Court, the parties retained the following experts:
Area of Expertise Applicant Respondent
Town Planning and Urban Design Mr Andrew Darroch Ms Gabriel Morrish
Ms Clare Brown
Stormwater Mr Rafic Rohme Mr David Milner
Traffic Mr Ramy Selim Mr Craig McLaren
[4]
The issues
At the commencement of the hearing, the applicant advised the Court that the plans that were the subject of a Notice of Motion filed on 27 May 2019 had been further amended and submitted a schedule of changes said to comprise all amendments made subsequent to that date.
The parties sought, and I granted, a short adjournment to permit the respondent, and the experts, to review the schedule of amendments, and the further amended plans.
Following the adjournment, leave was granted, unopposed, for the applicant to rely on amended drawings and documents under cover of an affidavit prepared by Mr A Boskovitz and dated 2 June 2019 and which comprised amended architectural plans (Ex E), amended landscape plans (Ex F), a written request pursuant to cl 4.6 of the Kogarah Local Environmental Plan 2012 (KLEP) regarding access to services (contained in Ex D) and a written request pursuant to cl 4.6 of the KLEP regarding building height (contained in Ex D).
The parties agreed that the further amended plans, and conferring of experts, resolved a number of the contentions contained in the Amended Statement of Facts and Contentions (Ex 1).
Additionally, the evolution of the plans and other documents which continued throughout the proceedings further narrowed the remaining issues for me to consider, and which may be summarised as follows:
Whether the proposed development demonstrates that adequate regard has been given to providing obvious and safe access to transport and facilities in accordance with Part 3 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD).
Whether a written request to contravene cl 26 of the SEPP HSPD in relation to the location and access to facilities adequately addresses the relevant provisions of cl 4.6 of the KLEP.
Whether adequate provision has been made for landscaping to the west of the site.
Insufficient information, including failure to provide a BCA report as described in contention 6 of Ex 1, and a Gross Floor Area calculation following final amendments to the plan.
The provisions of SEPP HSPD include a number of jurisdictional preconditions that must be satisfied in order to enliven the Court's power to grant consent. Consequently, before considering the merits contentions in this appeal, I must first consider whether the Applicant's development application satisfies the preconditions with respect to SEPP HSPD.
[5]
Statutory framework
The site is located within the R2 Low Density Residential Zone under the KLEP, in which seniors housing is permitted with consent. The objectives of the R2 Low Density Residential Zone are as follows:
1 Objectives of zone
• 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.
Seniors housing is a widely applied term for development. The dictionary contained in the KLEP relevantly defines this proposal as a group of self-contained dwellings, while cl 13 of the SEPP HSPD further identifies the self-contained dwellings in this proposal to be 'in-fill self-care housing'.
The proposed development falls within the SEPP HSPD. The aims of the SEPP HSPD are set out in cl 2 as follows:
(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.
Development for seniors housing is addressed in Chapter 3 of the SEPP HSPD and contains all of the clauses prescribing development standards. The objectives of the chapter are found at cl 14:
The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.
Clause 15 of the SEPP HSPD is within Chapter 3 and relevantly describes the function of the chapter as follows:
15 What Chapter does
This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:
(a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and
…
Clause 16 of SEPP HSPD relevantly provides:
16 Development consent required
Development allowed by this Chapter may be carried out only with the consent of the relevant consent authority unless another environmental planning instrument allows that development without consent.
On a site within Greater Sydney, and where facilities and services are located more than 400m from the site, a consent authority must not consent to a development application made under SEPP HSPD unless the consent authority is satisfied in relation to the relevant provisions found in cl 26 as follows:
26 Location and access to facilities
(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:
(a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and
(b) community services and recreation facilities, and
(c) the practice of a general medical practitioner.
(2) Access complies with this clause if:
…
(b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area) - there is a public transport service available to the residents who will occupy the proposed development:
(i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and
(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and
(iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),
and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or
…
(3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable:
(i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,
(ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time,
(iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time.
(4) For the purposes of subclause (2):
(a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and
…
Clause 29 of the SEPP HSPD requires that a consent authority, where a Site Compatibility Certificate is not applicable to the development application, must consider the compatibility of the site for seniors housing by reference to certain criteria:
29 Consent authority to consider certain site compatibility criteria for development applications to which clause 24 does not apply
(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) to which clause 24 does not apply.
…
(2) A consent authority, in determining a development application to which this clause applies, must take into consideration the criteria referred to in clause 25 (5) (b) (i), (iii) and (v).
…
The relevant criteria contained in subcl 25(5)(b) requires that I consider:
(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 …
[6]
Consideration
It is common ground that the site is within 400m of two bus stops, and that those bus services available to the site will take residents to a place that is located at a distance of not more than 400 metres from the facilities and services of the Oatley Town Centre, which offers the facilities and services described in cl 26(1)(a)-(c).
In opening submissions, the respondent contended that the bus services initially relied on by the applicant do not achieve the performance required by subcl 26(2)(b)(iii), that the pedestrian links provided for residents to access those bus services is neither obvious or safe as required by cl 38 and further that, in the absence of a survey, the Court cannot be satisfied that the gradient of the path to any relevant bus service complies with subcl 26(3).
According to the respondent, the bus services fail to achieve the performance set in cl 26(2)(b)(iii) because:
The applicant relied on services that are identified as school buses for the weekday morning services, provided by the Punchbowl Bus Company.
The bus stops on which the applicant relied are not sign posted, and the Neville Street bus stop is located in a 'No Stopping' zone which may prohibit the current bus service from using these stops, placing the reliability of the services at risk.
The applicant has not shown that the buses relied on are accessible for older people, or for those with a disability.
Access to and from the bus stop in Mimosa Street is via an obvious and safe pedestrian link from the site as required by cl 38 of the SEPP HSPD.
The applicant acknowledged that the bus services on which it had initially relied up until the commencement of the hearing, and including during the conferring of experts, were even more limited than it had assumed. As a result, the applicant amended the proposal that the Court is asked to consider.
Given the changes made to the proposal subsequent to the Amended Statement of Facts and Contentions, it is helpful to further outline the particular elements within cl 26 that define the issues in dispute, namely the nature of the bus services, and the means of pedestrian access to the bus services.
The applicant relies on bus route timetables sourced from the TripView App to show the time and location of bus services that are available within 400m of the site. The Department of Transport describes the function of the TripView App on its website in the following terms:
"TripView creates trip plans for metro, train, bus, ferry, light rail and coach services. Plan your trip based on stations, stops and wharves. For bus travel, you can search by route, suburb or stop. It will list all timetabled services with real-time data."
In essence, this summary identified, and the applicant acknowledged, that the site cannot rely on public transport to satisfy the requirements of cl 26(2)(b)(iii), and that alternative means of transport must be provided if the provisions are to be met.
While there are five bus stops located within 400m of the site, the applicant concedes that the frequency of available bus services means that only the bus stop located on Mimosa Street, directly opposite the site, can be relied on within the period set out in cl 26.
While the bus stop is not sign posted or marked in any way, the Court was shown a video by the applicant (Ex L), captured on a hand held iPhone, of the No.955 bus stopping at this location on Mimosa Street to pick up a passenger.
This bus service is provided by the Punchbowl Bus Company, and the parties agree the service is limited to pick up at 8.02am on school days only, and does not operate on weekends, public holidays or during school holidays.
The applicant now proposes a daily, private mini-bus service to provide future residents of the development with access to facilities and services described in cl 26(1) of the SEPP HSPD, and in a manner that complies with subcl 26(2)(b).
In support of this, the applicant provides written evidence by way of a quote from "DD Shuttles" dated 3 June 2019 (Ex O, Annexure 1) for regular passenger transport (daily) for one full calendar year. The bus is nominated to be a 20-seater that is wheelchair accessible, that would provide a pick up from Hillcrest Nursing Home and return, 9am-11am, and again at 2pm-5pm.
In his evidence, Mr Darroch stressed that the proposal to provide private transport by mini-bus was intended to supplement, and not to wholly replace public transport, where available. As he put it, the frequency of public transport may be subject to change, with an increase or decrease in services likely to occur throughout the life of the development.
To ensure reliability of the service, the applicant proposes that the bus service be the subject of a condition of consent, and a public positive covenant be registered with the title of the land to impose enforceable obligations on the owner's corporation for the life of the development.
The applicant acknowledges that its proposal to provide the residents with a private mini-bus that operates on a user-pays basis, 365 days of the year, would contravene provisions of cl 26(2)(b) of the SEPP HSPD. For this reason, the applicant prepared a written request pursuant to cl 4.6 of the KLEP (Ex O).
However, the respondent submits, and I agree, that the written request to contravene the provisions of cl 26 is only relevant if the Court is first satisfied that adequate regard has been given to the principles set out in Part 3 of SEPP HSPD.
Part 3 of the SEPP HSPD details specific design requirements that the consent authority must be satisfied are met by the proposed development to allow consent to be granted.
I also note that as the applicant does not seek to justify a contravention of the access standard within cl 26(2)(b)(i) of the SEPP HSPD, the Court must consider whether a suitable access pathway is provided to the bus service, as defined by cl 26(4)(a).
Clause 30 requires the Court to be satisfied that the applicant has taken into account a site analysis prepared in accordance with that clause.
Clause 32 requires a consent authority to be satisfied that a proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.
Clause 38 contains the relevant principle within Division 2 which is in the following terms:
38 Accessibility
The proposed development should:
(a) have obvious and safe pedestrian links from the site that provide access to public transport services or local facilities, and
(b) provide attractive, yet safe, environments for pedestrians and motorists with convenient access and parking for residents and visitors.
If I am first satisfied that the proposed development has demonstrated adequate regard for the principles in Division 2, at cl 38, only then must I consider the applicant's written request to contravene the provisions of cl 26 of the SEPP HSPD relating to location and access to facilities, and which the parties agree is a development standard amenable to variation by written request under cl 4.6 of the KLEP.
I now consider the access to the bus stop agreed by the parties to be the bus stop in question, with reference to cl 38 of the SEPP HSPD, and the access standard found in cl 26(2)(b)(i), and which is further defined in cl 26(4).
As I have already noted, the parties agree that the only bus stop with a service that can be considered to fall within the period set out in cl 26 is the Mimosa Street bus stop, located outside the Hillcrest Nursing Home which is directly across the road from the site.
Both parties identified the Mimosa Street bus stop as the location of pick up and drop off for transport, and so the nature of access to this location is relevant.
The respondent's town planner, Ms Brown, is of the view that the amended plans, in Exhibit E, do not provide an obvious and safe pedestrian link from the site. Future residents of Units 6, 7 and 8 would be likely to exit the site via Winter Place. The proposal does not show a sealed footpath connecting to Mimosa Street, and so residents and visitors would be forced on to the roadway.
All residents of the site would then be required to cross Mimosa Street to access the bus stop. Ms Brown noted that anyone crossing the street does not have the protection of a pedestrian refuge, or kerb crossing connected to a footpath outside the Hillcrest Nursing Home. Instead, the path most likely to be taken would be to step into the driveway of the nursing home to access the sealed footpath.
Finally, Ms Brown notes that access to the bus stop kerb at which the passenger referred to in [34] was waiting, is via a grass verge, without a seat, or shelter to wait. The stop is not sign posted, and no line markings are evident, and so it cannot be said to be obvious.
The applicant notes there is no standard or control that would require a seat, or shelter to be provided at the bus stop, and should the Court form the view it is required, a 1.2m wide footpath to Winter Place could be imposed as a condition of consent on the development.
The applicant also submits that a pedestrian refuge island could be the subject of an application by the applicant to the Council's Traffic Committee, and proposes that this also be imposed as a condition of consent.
In submissions, the respondent noted that the joint expert traffic report (Ex 4) provided only conditional support to a pedestrian refuge in Mimosa Street, subject to traffic flow data confirming that the street is subject to traffic volumes of less than 300 vehicles per hour, and which has not been provided.
Further, the respondent submitted that the Court had not been provided with a location of a proposed pedestrian refuge, noting that there could be implications for on street parking, driveways and the like.
The respondent submits that this pathway fails to provide the obvious and safe pedestrian links described in cl 38 of the SEPP HSPD and that as a consequence, the proposed development fails to demonstrate that the applicant has had adequate regard to the principles in Division 2 of the SEPP HSPD, or to the access standard found in cl 26(2)(b)(i).
The origins of the deficiency, according to the respondent, lie in a failure by the applicant to conduct a site analysis in accordance with cl 30 of the SEPP HSPD.
Had such an analysis been undertaken, the applicant's attention would have been drawn to subcl 30(4) of SEPP HSPD that requires the applicant to identify information relevant to the surrounds of a site, including:
…
(g) Street frontage features:
Poles
Trees
Kerb crossovers
Bus stops
Other services
…
(j) Direction and distance to local facilities:
Local shops
Schools
Public transport
Recreation and community facilities
…
The applicant submits that the language used in cl 38, and the test applied by cl 32, are indicative of a generally low bar being set by the provisions found in Part 3 of the SEPP HSPD. That low bar can easily be satisfied because, unlike cl 26 of the SEPP HSPD, there is no distance provision to public transport contained in Part 3, and in any event, high quality pedestrian links are available to residents from the site to the Oatley Town Centre at a distance of around 800m.
Instead, the applicant prefers to rely on the access standards found in subcl 26(2)(b)(i) which requires that a bus stop should be "accessible by means of a suitable pathway" from the site, and which is defined at subcl 26(4) in the following terms:
(a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like…
Further, in the event that a seat or platform is considered appropriate, the applicant invited the Court to identify any further conditions of consent it considers necessary.
[7]
Findings
In essence, the respondent's primary position is that the applicant failed to conduct a thorough site analysis upfront in accordance with cl 30 of the SEPP HSPD. As a result of this, the application fails to demonstrate adequate regard to the requirements of cl 38 of the SEPP HSPD, and so the Court must refuse the application in accordance with cl 32 of the SEPP HSPD.
According to the respondent, this failure is symptomatic of a wider deficiency that is seen reflected in incomplete documentation that the applicant now seeks to correct at the eleventh hour by proposing that conditions of consent be imposed.
Clause 30 of the SEPP HSPD states that a consent authority must not consent to a development application unless it is satisfied that the applicant has taken into account a site analysis containing information about the site and its surrounds, contained in writing, and supported by plans and drawings of sections and elevations, at cl 30(2)(b):
(i) explaining how the design of the proposed development has regard to the site analysis, and
(ii) explaining how the design of the proposed development has regard to the design principles set out in Division 2.
The provision considers a site analysis would comprise a range of written and visual documentation, including an explanation of how the design principles found in Division 2 have been addressed. Evidence of this is found in the Statement of Environmental Effects, contained in the class 1 application (Ex B).
The respondent places a particular focus on cl 30(4)(g) and (j) of the SEPP HSPD which requires an analysis of bus stops and public transport. An analysis, of a sort, can be said to be found initially in both Exhibit B, and in information prepared later by Mr Darroch for the applicant in Exhibit 3.
While there is no doubt that the information contained in Exhibit B and Exhibit 3, in relation to bus services is flawed, and was later corrected by the applicant during the hearing, giving rise to Exhibit O, cl 30 does not appear to require that the analysis be flawless. Instead, the test is whether the applicant has taken in to account a site analysis prepared by the applicant in accordance with the clause.
So while I consider the flaws in the early site analysis to go some way to explaining the numerous amendments later made to the application before the Court, I do not consider the flaws to be fatal to the application itself.
Clause 32 also contains provisions that constrain the consent authority, or the Court exercising the functions and powers of the consent authority on appeal, from granting consent 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.
These principles include:
Clause 33 - Neighbourhood amenity and streetscape
Clause 34 - Visual and acoustic privacy
Clause 35 - Solar access and design for climate
Clause 36 - Stormwater
Clause 37 - Crime prevention
Clause 38 - Accessibility
Clause 39 - Waste Management
In this case, the principle of most relevance in Division 2 is cl 38 which provides that:
The proposed development should:
(a) have obvious and safe pedestrian links from the site that provide access to public transport services or local facilities…
It is common ground that the public bus services do not provide the frequency of service that comply with the periods of service required by cl 26(2)(b)(iii) of the SEPP HSPD.
For this reason, the applicant prepared a written request to contravene the provisions of cl 26 pursuant to cl 4.6 of the KLEP. The written request seeks to contravene the requirement for public transport to be available to residents in accordance with cl 26(2)(b)(iii). However the applicant does not contest, and in fact relies on, the access provisions found at cl 26(2)(b)(i) set out at [62].
As I have already stated, it is my view that regardless of the frequency of the bus service, or the provider of the bus services, which are matters that the written request seeks to deal with, the first question is whether obvious and safe access is provided to the bus stop in question, and whether it can be said that a suitable access pathway is provided.
The bus stop to which obvious and safe pedestrian links should be provided, pursuant to cl 38 of the SEPP HSPD, is the bus stop at the Hillcrest Nursing Home. However, while there is no question that the bus stop currently functions as a bus stop for the purposes of the No.955 operated by Punchbowl Bus Company, I am not satisfied that access to the bus stop complies with the access described in cl 38, and so required by cl 32 to be adequately regarded in order for consent to be granted.
Even if a footpath to the Winter Place frontage was imposed as a condition of consent, I am not satisfied that obvious and safe pedestrian links would be provided from the site for the following reasons:
1. I am not satisfied that a pedestrian refuge on Mimosa Street is either practical or certain. The applicant undertakes merely to make an application to the Council's traffic committee for such a refuge without proposing a location, size or providing an analysis of any impacts on traffic flow, car parking or driveways.
2. The Court does not have before it any evidence that the applicant has proposed to provide, or engaged in discussions with Council to provide, a kerb crossing on the southern side of Mimosa Street that would make it safe for an aged person to access the bus stop, or to provide a sealed foothpath to the kerb at the bus stop where there is currently an uneven grass verge.
For the reasons set out in [78(2)] it also cannot be said that the applicant has provided a suitable access pathway as defined by cl 26(4).
Given my findings that the proposed development fails to demonstrate that adequate regard has been given to the principles set out in Division 2, the operation of cl 32 prevents me from granting consent to the proposal. Consequently I do not need to determine further contentions.
However if it is the case that I am incorrect in the significant weight I give to the provisions found in Part 3 of the SEPP HSPD, I now consider the written request made by the applicant pursuant to cl 4.6 of the KLEP.
[8]
Written request to vary the development standard
The applicant's written request, made pursuant to clause 4.6 of the KLEP, seeks to contravene the provisions of clause 26 of the SEPP HSPD, already reproduced at [23].
The written request was prepared by Mr Andrew Darroch, was amended during proceedings and was entered as Exhibit O.
The written request was addressed at length by the parties in oral submissions. It is commonly held, and I am satisfied, for the reasons stated by Dixon SC in Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205, that cl 26 is a development standard that is amenable to variation by written request.
Clause 4.6 of the KLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 26 of the SEPP HSPD.
Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:
1. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),
2. The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),
3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a), and
4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that:
1. the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and;
2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
Clause 4.6(4)(b) requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act but should still consider the matters in cl 4.6(5) of the KLEP (Initial Action at [29]).
Clause 4.6 of the KLEP is in the following terms:
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 Secretary has been obtained.
(5) In deciding whether to grant concurrence, the Secretary must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
The meaning of the clause has been the subject of judicial consideration in a number of cases that were brought to my attention by the parties in oral submissions, including: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe); Initial Action; Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61; Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205.
The written request acknowledges that the development does not comply with cl 26(2)(b)(iii) because:
1. the site is located approximately 650m from Oatley station, and a 550m walk from facilities and services in the Oatley Town Centre.
2. While the site is located within 20m of the bus stop at the Hillcrest Nursing Home, the bus stop is not sign posted and does not include an indented kerb and other bus stops within a 400m distance are operated in a manner not within the road rules and so cannot be reasonably relied on.
3. The existing bus service is not satisfactorily operated
The applicant, in the written request, outlines the proposal for an alternative solution to the development standard in response to cl 4.6(4)(a)(ii) as follows:
"The proposal is for:
1) Private mini bus to run services that comply with clause 26
2) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive),
3) it will run from the Hillcrest bus stop to the Oatley Train Station, and in to the Oatley Village, and to the relevant facilities and services. Notably it will be able to stop at the Oatley Train Station, and take residents directly to relevant facilities and services, whether they be the services of a GHP, shops, or recreational facilities, see for example annexure 4
4) It will run 365 days a year"
In support of the proposal, the applicant includes,
1. Confirmation that the proposal is modelled on the bus that is contemplated by cl 43 of the SEPP HSPD, and proposes a condition of consent that adopts the wording of cl 43(1) for a bus carrying 10 passengers
2. At Annexure 1 and annexure 5 of Exhibit O, evidence of agreement with a provider, DD Shuttles, for a cost of $31,025.00 for one full calendar year
3. Proposes a positive covenant to be registered on the title of the property so that responsibility and maintenance of the bus service is imposed on the owners of the land
4. Proposes a draft condition of consent to require a 1.2m wide footpath the full length of Mimosa street and Winter Place
5. An offer for the applicant to make an application to Georges Rivers Council traffic committee to facilitate the installation of a pedestrian refuge on Mimosa Street.
The written request identifies that the first method set out in Wehbe is of particular assistance in establishing that compliance with the development standard is unreasonable or unnecessary, by reference to the development standard being achieved notwithstanding the non-compliance with the development standard. To this end, the written request relies on:
1. The underlying objectives of the SEPP HSPD being to:
"Ensure that the future residents of the development will have access to all services and facilities require by the clause that they would reasonably require"
1. The objectives of the R2 zone which are set out at [17]
2. That the private mini-bus to run services 365 days a year would comply with the periods set by cl 26(2)(b)(iii)
3. The proposed development improves the provision of housing for the needs of the community by increasing the supply and diversity of residents that meet the needs of seniors or people with a disability.
In relation to the second opinion of satisfaction at cl 4.6(4)(a)(ii), the written request relies on:
1. The proposed development complies with the zone objectives by adhering to the setbacks, storeys and orientation, form and articulation, streetscape and the like found in Councils' DCP
2. The form of development proposed is compatible with the built character of Oatley and its landscape setting.
The applicant is of the view that there are sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons:
1. A compliant development would provide access to facilities daily, however the provision of a private mini bus within 400m of the site can facilitate more regular access to facilities and services in Oatley Town Centre
2. Residents will have the choice of private and public transport
3. The proposed bus service is a better outcome than the existing public transport. It would be door to door, safe, specific, reliable, accessible, providing improved amenity
4. The provision of services from an accessible bus service for residents will result in less traffic generation
5. The proposed development will make a significant contribution to the availability of a specialised type of accommodation in the area.
[9]
The respondent's position in relation to the written request
The respondent notes that cl 26(2)(b) fixes the usual means by which an application can meet the objectives of the clause, namely, by providing access to public transport within the metropolitan area, which is distinct from seniors housing developed outside the metropolitan area where subcl 26(2)(c) permits a bus that is similarly described in cl 43 of the SEPP HSPD.
Consequently, the implications of the applicant's written request are such a departure from the SEPP HSPD that it would be a matter of significance for State environmental planning, and that the Secretary's concurrence should not be assumed.
The respondent cites Preston CJ in Wehbe at [51] to caution that a written request pursuant to cl 4.6 of the KLEP cannot be used as a means to effect general planning changes throughout a local government area.
In short, for the Court to permit seniors housing development in an R2 Low Density Residential zone but where the location and access to facilities envisaged by cl 26(2)(b) can be overlooked would undermine the intent of the SEPP HSPD itself and 'greenlight' development anywhere in an R2 zone so long as a private mini bus is provided at cost to the residents.
The respondent also notes that cl 29 of the SEPP HSPD requires the consent authority to consider the compatibility of the site for seniors housing development by reference to, relevantly, cl 25(5)(b)(iii) which is at [25] and is in the following terms:
(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,
Consideration of the financial arrangements referred to in [101] , according to the respondent must, in this case, encompass the ongoing costs to the future residents of the private mini-bus for which a quote has been provided for one year only, and to be shared by eight units which can be considered a small development.
The respondent contrasts this with other matters decided by the Court that were significantly larger in scale, and distinguished by having a commercial operator, with on-site management providing facilities within 400m of the site, and in an environment where the seniors housing development was 'high care' needs within a residential aged care facility, such as was the case in the Australian Nursing Home Foundation Limited v Ku-ring-gai Council.
Such a distinction is especially relevant when considering the access to housing for future residents who may be seeking in-fill self-care seniors housing in the Oatley area, but may be on a fixed income, retired or on a pension.
The additional and unnecessary costs imposed on the development are a result of the applicant's failure to undertake a reasonable site analysis at the time of selecting the site and are, the respondent argues, antithetical to the zone objectives, and could serve to exclude seniors from meeting their own housing needs within a low density residential environment.
[10]
Findings
The consent authority must form a positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b) (Initial Action at [25]).
I am not satisfied that the applicant's written request to contravene cl 26 of the SEPP HSPD has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) of KLEP for the following reasons:
1. The written request, in my view, seeks to exceed what may be regarded as an appropriate degree of flexibility in applying the development standard to the proposed development, because it would impose on a small number of residents, that may number as few as eight people, an ongoing logistical and financial burden for the life of the development that is out of proportion to the scale of the development. In making my decision, I note that the written request does not address the provisions of cl 25(5)(b)(iii), which incorporates the location and access requirements of cl 26 and which requires that a consent authority, or the court on appeal must consider, inter alia, any proposed financial arrangements for infrastructure provision, such as, in this case, transport infrastructure.
2. The written request does not adequately address the means of pedestrian access to the proposed bus stop, and so it can be assumed that the applicant does not seek to contravene the access provisions found in the development standard.
3. The proposal, and the written request prepared under cl 4.6 of the KLEP in support of it, fail to consider any provision for a bus service to the site itself. The site exceeds the minimum site area found in subcl 40(2) and the minimum site frontage found at subcl 40(3), and is located on a corner site. The site would appear to be capable of accommodating a mini-bus, if that is an appropriate solution, which for the reasons stated earlier, I question. Instead, the applicant proposes that residents aged 55 and over should navigate their way across a road that is not signalled and for which no provision is made for pedestrians to cross, to an unmarked point beyond the site and in front of another site that is known to be regularly attended by ambulances, buses and other service vehicles, and in consideration of which no evidence has been presented to indicate accommodation or co-ordination.
As I am not satisfied about this aspect of the written request, I cannot approve the contravention to cl 26 of the SEPP HSPD and there is no jurisdiction to approve of the development application or consider anything else.
[11]
Orders
The Court orders:
1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit E and Exhibit N.
2. The Applicant is to pay Council's costs thrown away as a result of the Applicant amending the development application, as agreed or assessed.
3. The appeal is dismissed.
4. The Development Application DA2018/0071 for the demolition of 2 existing structures and construction of basement car park and eight x2-storey attached units to be used as seniors living housing and other ancillary storage works at 10-12 Mimosa Street, Oatley is refused.
5. The exhibits are returned, except for Exhibits B, E, N and O.
[12]
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Decision last updated: 19 June 2019