COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/2021/1901 (the DA) by the Northern Beaches Council (the Respondent). The DA sought consent for demolition of the existing dwelling houses and construction of a seniors housing development comprising 12 dwellings over a single level of basement car parking comprising 26 parking spaces, at 21-23 Mona Avenue and 120 Bassett Street, Mona Vale (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 April, 27 May and 7 June 2022. I presided over the conciliation conference.
Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter commenced with a site viewing limited in the number of participants before resuming by Microsoft Teams.
Prior to the conciliation conference, on 21 January 2022, the Applicant was granted leave by the Court to amend the DA and rely on amended documents.
Again, prior to the conciliation conference, on 8 April 2022, the Respondent granted consent to this amended DA subject to a number of conditions of consent, which required the Applicant to undertake specific footpath and road reservation upgrade works aimed at improving access from the site to local public transport services.
On 26 April 2022, at the conciliation conference, the parties sought to discuss these conditions of deferred commencement.
During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Whilst the final amended DA remains largely the same as the original proposal, a series of measures have cumulatively resolved the matter.
Of relevance, the parties have now reached agreement on the final form of conditions of consent, which includes the deletion of existing conditions of deferred commencement and the inclusion of an operational condition requiring certain footpath and road upgrade works to be carried out prior to the issue of a construction certificate.
Also of relevance, the parties agree that the relatively new "Keo Ride" service fulfils necessary requirements for public transport access in the vicinity of a seniors housing development.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The parties agree, and I am satisfied, that the Pittwater Local Environmental Plan 2014 (PLEP) is a relevant environmental planning instrument. The site is zoned R2 Low Density Residential and the proposed development - characterised as dwelling houses - is permissible with consent.
The parties agree, and I am satisfied, that all principal development standards of the PLEP have been met by the amended DA, specifically cl 4.3 - Height of buildings which establishes a maximum height of 8.5m for the site. Of note, cl 4.4 - Floor space ratio (FSR) of the PLEP does not prescribe a FSR for the site.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 5.10 - Heritage conservation of the PLEP. The site is not identified as heritage item, nor located within a heritage conservation area.
The parties agree, and I am satisfied, that cl 5.21 - Flood planning and cl 7.4 - Floodplain risk management are relevant jurisdictional considerations. The site is mapped within the low risk and medium risk precincts, and the Applicant has provided a corresponding flood study report within its DA documentation. The recommendations of this report are incorporated within the agreed conditions of consent.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 7.1 - Acid sulfate soils of the PLEP. The Applicant has provided an Acid Sulfate Assessment as part of the DA documentation. Requirements for the management and reporting of acid sulfates are incorporated in the agreed conditions of consent.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 7.2 - Earthworks of the PLEP. The proposal comprises earthworks for the construction of a basement level for car parking, which is proposed to be set back a minimum of 3m from the boundaries of adjoining properties. The Applicant has provided a geotechnical report with the DA documentation, and this has been accepted by the Respondent.
The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 7.10 - Essential services of the PLEP. The site is appropriately serviced.
The parties agree, and I am satisfied, that the amended DA remains subject to the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors).
Clause 26 of SEPP Seniors provides that, prior to the grant of consent, the consent authority must be satisfied that residents of the proposed development will have appropriate access to shops, bank service providers and other retail and commercial services, community services and recreation facilities, and the practice of a general medical practitioner.
Although the site is situated more than 400m away from the services identified at cl 26(1), the proposed development complies with these access requirements in accordance with cl 26(2)(b), since there is a public transport service, being the on-demand "Keo Ride" service, available to residents who occupy the proposed development, located not more than 400m from the site by means of a suitable access pathway. The amended DA includes footpath upgrades and pedestrian refuges within the vicinity of the development site necessary to meet the requirements of cl 26 of SEPP Seniors.
The parties agree, and I am satisfied, that the design requirements set out in Pt 3 of SEPP Seniors have also been met by the amended DA.
The parties agree, and I am satisfied, that the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument.
The site is jointly mapped as "coastal environment area" and "coastal use area" within the meaning of Divs 3 and 4 of Ch 2. In compliance with the requirements of SEPP Resilience and Hazards, the Applicant has demonstrated that the proposed development is not considered to significantly impact upon any of the relevant statutory considerations as development on land within the coastal environment area in accordance with s 2.10, and similarly, that the proposed development is sited and designed to avoid an adverse impact upon any of the statutory considerations as development on land within the coastal use area in accordance with s 2.11.
Further, the parties agree, and I am satisfied, that the site has historically been used for residential purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. In compliance with the relevant requirements of this SEPP, the Applicant has prepared the necessary BASIX certificate reflecting the final amended DA.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
1. The Applicant has amended Development Application DA2021/1901 with the agreement of the Respondent pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000.
2. The amended Development Application was uploaded to the NSW Planning Portal on 27 May 2022.
3. The Applicant has filed the amended Development Application with the Court on 7 June 2022.
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Orders
The Court orders that:
1. Leave is granted to the Applicant to amend Development Application DA/2021/1901 and rely on the amended plans and documents listed at condition 1 of Annexure A.
2. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the amount of $3,000 within 28 days of these orders.
3. The appeal is upheld.
4. Consent is granted to Development Application DA/2021/1901 (as amended) for demolition of the existing dwelling houses and construction of a seniors housing development comprising 12 dwellings over one level of basement car parking containing 26 parking spaces, at 21-23 Mona Avenue and 120 Bassett Street, Mona Vale, subject to conditions contained in Annexure A.
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Decision last updated: 27 July 2022