Melwood Avenue Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2024-09-03|Before: Preston CJ

JudgmenT

COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Northern Beaches Council (Council) of Development Application No DA2022/2181 (the DA).
Any further reference to the DA in this judgment is to the development application as amended by the Applicant, and the subject of the agreement and Consent Orders reached with the Council.
The DA seeks approval for demolition of the existing dwelling and construction of a seniors housing development incorporating in-fill self-care housing units, basement car parking and associated landscaping ('Proposed Development').
Following the commencement of the hearing and site view, the parties informed the Court they had reached agreement as to the matters that would resolve the Council's contentions in its Amended Statement of Facts and Contentions (ASOFAC) dated 6 August 2024. Accordingly, the parties requested the Court to determine the appeal by way of Consent Orders which included the agreed conditions of consent.
The parties prepared agreed Submissions on Jurisdiction (Submissions) which provided an outline of the history of the DA, and set out relevant factual and jurisdictional matters to support the proposed Consent Orders, seeking the Court to uphold the appeal and grant development consent to the DA No DA2022/2181 with conditions at Annexure A.
The power of the Court to give effect to the parties' Consent Orders is pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act) and ss 4.16(1)(a) and 4.17(1)(b) of the EPA Act.
As the Commissioner assigned to hear this matter, I am required to be satisfied that the agreed position reached is within the Court's jurisdiction to make: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, per Preston CJ at [16]; McMillan v Taylor [2023] NSWCA 183, per Basten AJA at [58].

The Site and the Statutory Controls

The Site is zoned R2 Low Density Residential under the Warringah Local Environmental Plan 2011 (WLEP) under which seniors housing developments are prohibited. However, the proposed development is permissible with consent under the provisions of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), in particular, ss 8, 79 and 81.
The State Environmental Planning Policy Amendment (Housing) 2023 (Amending Policy) which was passed on 14 December 2023, does not apply to the Amended Development Application by operation of the savings and transitional provisions of the Amending Policy.

Amended Plans and Contentions

The proposed amended plans before the Court seek consent for 7 self-care housing units comprising four 2 bedroom, three 3 bedroom and nine carparking spaces. The Submissions detail the improvements to the overall development as a result of the amended plans which resolved the Council's outstanding contentions and I quote from the Submissions as follows: "Reduction in the FSR from 0.56:1 to 0.55:1 with the GFA being decreased from 797.9 sqm to 794.27 sqm. This represents an exceedance of the FSR standard of 83.77m² or 11.7%. The change to the FSR has been achieved by increasing the side setbacks, the replanning of unit 101 and the reduction of unit 202 and 203 from 3 bedrooms to 2 bedrooms. The amendments to the plans to reduce the FSR are supported by an updated clause 4.6 variation request based on the amended plans. These amendments resolve Contention 1. Elimination of the breach of the building height control set out in State Environmental Planning Policy (Housing) 2021 (SEPP) at section 84(2)(c)(iii) by reconfiguring unit 301 from a 3 bedroom to 2 bedroom unit. The proposal is now compliant with the control resulting in the building which is more than 2 storeys being set back to be within the 45-degree angle projected from the side and rear boundaries. The applicant therefore no longer relies on the class 4.6 variation. These amendments resolve Contention 2. The bulk and scale of the proposal has been reduced, visual and acoustic privacy addressed and weather protection has been achieved to resolve Contentions 3 and 4 by: increasing the deep soil landscaping, reducing balcony sizes for units 201 and 203 and increasing the depth of the awnings over the balconies, providing weather screening and inclusion of privacy screens amending the driveway to provide an increase set back to the southern boundary improve the visual and acoustic privacy of the neighbours Providing an appropriate sized temporary waste collection bay within 6 metres of the front boundary together with a bin tug. An updated Waste Management Plan has been prepared to resolved Contention 5. In relation to access to public transport, the Council's proposed conditions require the applicant to construct a 1.5m wide concrete footpath for the full property frontage and link up with the adjoining properties vehicle crossings. The experts agree this resolves Contention 6. An updated BASIX Certificate has now also been provided to resolved Contention 7."
Issues raised by the Respondent's experts in the Joint Expert Report were also raised in oral evidence and the outcomes are summarised in the Submissions as follows: "The proposed development is compatible with the character of the area having regard to Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 and has acceptable impacts on the streetscape with a design that appears to be no larger than any modern 2 storey dwelling house as seen through the west elevation on drawing No. DA2002 of the amended plans. The reduction in the size of the building reduces the bulk in relation to the streetscape of Melwood Avenue. The amended proposal has been designed to minimise amenity impacts on the adjoining properties, specifically overshadowing and privacy impacts on existing and future occupants of the adjoining properties. The proposal is consistent with the desired character (having regard to the development controls applicable to the site) of the locality and is thus consistent with cl 4.4(1)(c) of WLEP 2011. All the minimum setback controls set out in Council's planning controls are exceeded, in particular the side and rear setbacks. The proposed development appropriately steps down the site, consistent with the topography, therefore complying with the height of buildings development standard and minimising the apparent visual bulk. The density of the proposed development is appropriate having regard to the extent of the development that can be approved on the adjoining sites. The incorporation of varied setbacks, high-quality architectural design and thoughtfully placed landscape planting serves to both elevate the urban environment and minimise the visual impact of the building when observed from neighbouring properties, streets, waterways and land zoned for public recreation purposes. The side and rear setbacks of the latest amended plans attached to this reply have been progressively increased for levels 1 to levels 3 in accordance with control 1 within D9 of WDCP 2011 to minimise the visual impact of the development when viewed from adjoining properties."
I am satisfied that the expert evidence has been considered, and accept the conclusions and outcomes reached.

Jurisdictional Considerations

The Development Application was made with the written consent of the owner of the subject Site for the purposes of s 23 of the Environmental Planning and Assessment Regulation 2021.
All works are confined to the Property except for works proposed at the frontage of the Property in the Council's Road reserve, to be carried out in accordance with an approval under s 138 of the Roads Act 1993.

State Environmental Planning Policies (SEPPs)

I have considered the jurisdictional provisions applicable to the Proposed Development on the subject Site that are raised by the following SEPPs, discussed in detail in the Submissions at paragraphs [14] to - [36]. I agree with the parties' conclusions that proper consideration has been given and no jurisdictional impediments arise pursuant to the following SEPPs: 1. State Environmental Planning Policy (Resilience and Hazards) 2021 2. State Environmental Planning Policy (Transport and Infrastructure) 2021 3. State Environmental Planning Policy (BASIX Sustainability Index - BASIX) 2004

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

As mentioned above the development is permissible under the Housing SEPP and the parties agree that the proposed development meets the applicable controls of the Housing SEPP. This analysis is set out in the Submissions at pars 29 to 36. In summary, the Court is satisfied of the following requirements going to jurisdiction: 1. only the category of people listed in s 88(1) of the Housing SEPP will occupy the proposed development; 2. residents of the proposed development will have adequate access to facilities and services for the reasons given in page 16 of the Statement of Environmental Effects, the Access Report, and Traffic Report; 3. Pursuant to s 95 of the Housing SEPP, residents will have adequate access to reticulated water and adequate facilities for the removal of sewage; 4. the Seniors Living Guideline has been considered having regard to pp 18-20 of the Statement of Environmental Effects; 5. Pursuant to s 85(1) of the Housing SEPP, the Amended DA complies with the accessibility and usability requirements of Sch 4 as detailed in the Access Report; 6. Div 6 of Pt 5 of the Housing SEPP - the Design principles have been adequately considered in the design of the proposed seniors housing development the subject of the Amended DA.
The Court is satisfied that the DA can otherwise be approved having regard to the provisions of the Housing SEPP for the reasons summarised in a table prepared by the Applicant and included at Annexure B to the Submissions which I do not need to reproduce in full here. I note the following cl 4.6 WLEP requests: refer Submissions para [35] "A written Clause 4.6 request for the non-compliance with the Floor Space Ratio standard under SEPP (Housing) 2021 has been submitted which establishes that the bulk and scale of the development is consistent with that of the surrounding area when viewed from the public domain. "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. Accordingly, 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). There are sufficient environmental planning grounds to justify contravening the FSR Standard (pursuant to cl 4.6(3)(b) of the WLEP). The applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). A further written Clause 4.6 request has been made due to the development not complying with the non-numerical development standard which requires each dwelling to have 'Access to kitchen, main bedroom, bathroom and toilet ' at dwelling entry level. The breach is considered minor and due to the private lobby for non-compliant apartment (apartment U301) being located a level below the rest of the apartment".
The Council agreed with the above analysis and reasons, which I accept. I formally find both cl 4.6 requests to vary the development standards are upheld which are noted below under Notations.
The statutory controls applicable to the Site and the Proposed Development are listed in the Amended SOFAC and were considered by the Respondent during its assessment of the DA.
I am satisfied that in its consideration of the DA, the Council has considered all matters of relevance to the development the subject of the DA identified in s 4.15 of the EPA Act.
Having assessed the above matters, the parties agree that all jurisdictional pre-requisites to the grant of development consent to the DA have been met, and that it is lawful and appropriate to grant development consent to the Proposed Development the subject of the DA having regard to the whole of the relevant circumstances, including the proposed conditions.
Conclusion & Public Participation
I am satisfied that the neighbouring objectors and owners were appropriately notified and given an opportunity to make submissions to the Court on site. I am satisfied that all reasonable concerns of neighbouring objectors have been addressed by the Applicant and the Council in reaching the agreed position and there are no jurisdictional impediments to the making of the Consent Orders with the agreed conditions of consent at Annexure A.
For the reasons set out above and based on the evidence before me, my observations on site and oral submissions, I am satisfied the appeal should be upheld and Development Consent to DA2022/2181 be granted.

Notations

The Court notes that: 1. The applicant's written request to justify the contravention in density and scale (FSR) pursuant to s 108(2)(c) of the State Environmental Planning Policy (Housing) 2021 and clause 4.4 of Warringah Local Environmental Plan 2011, prepared by Boston Blyth Fleming dated 3 September 2024, is upheld; 2. The applicant's written request to justify the minor contravention due to the development (unit 301) not complying with the non-numerical development standard which requires each dwelling to have 'Access to kitchen, main bedroom, bathroom and toilet ' at dwelling entry level, pursuant to s 85 of the State Environmental Planning Policy (Housing) 2021, prepared by Boston Blyth Fleming dated 3 September 2024, is upheld.

Orders

The Court orders: 1. The appeal is upheld. 2. Development Application No DA2022/2181 for demolition works, tree removal and construction of a seniors housing development at 69 Melwood Avenue, Forestville, NSW 2087 being Lot 1 in DP208183, is determined by the grant of consent subject to conditions in Annexure A.

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: 29 November 2024

At a glance

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Judgment (9 paragraphs)

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Cases Cited (3)