Parsanejad v Ku-ring-gai Council

Land and Environment Court (NSW)|2020-02-20

Judgment

COMMISSIONER: The Applicant seeks consent for the demolition of single storey dwelling house and the construction of nine self-contained dwellings over one level of basement parking with ancillary site and landscape works. The application is made under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD). The works are proposed at 70 Junction Road, Wahroonga (Lot B DP 356612).
Following the expiration of the deemed refusal period, the Applicant filed an appeal with the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The appeal was subject to mandatory conciliation on 27 June 2019 (s 34 of the Land and Environment Court Act 1979 (LEC Act), however agreement was not reached and conciliation was terminated. The matter was dealt with as a hearing.
In response to the contentions prepared by the Respondent and the outcomes of the conciliation conference, the Applicant prepared a series of amended plans. The first of these were granted leave by the Registrar in July 2019.
A further set of amended plans, responsive to the joint conferencing of the experts, was granted leave with the consent of the Respondent at the commencement of the hearing.
The Respondent acknowledges that, as a result of amendments, the following contentions are now resolved: the development being prohibited, the satisfaction of cl 26 of SEPP HSPD; the adequacy of the site analysis; excessive building height; excessive bulk and scale; inappropriateness of the previous vehicular access of Junction Road; tree removal and the impact of the proposed development on the retained trees; insufficient ecological assessment and the lack of a current certificate in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX ) 2004.

The site

The subject site is regular in shape and addresses both Junction Road and Wahroonga Avenue, with frontages of 49.74m and 48.95m respectively to these streets. The site has a depth of 48.945m and falls to the north western corner. The site area is 2434m².
The site contains a number of existing trees, some of significant size and maturity. The eastern portion of the site and the frontage to Wahroonga Avenue is identified as biodiversity land on the 'Terrestrial Biodiversity Map' under the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).
Current improvements on the site include a single storey brick dwelling with a tiled hip roof. The dwelling is proposed to be demolished as part of the application. The site's boundary with Junction Road is defined by a rendered brick fence of approximately 1.8m height which, along with the existing 3m high photinia hedge, is proposed to be retained.

Public submissions

The application was notified in accordance with the requirements of the Ku-ring-gai Development Control Plan (DCP). Three submissions were received by the Council. The submissions identified the following objections to the application:

incompatibility of the development with its zoning,
incompatibility with the streetscape,
excessive density,
inadequate access to infrastructure,
traffic safety,
noise impacts,
view loss, and
overshadowing.

These issues broadly correlate with contentions in the proceedings and are considered in the body of the judgment.
Mr Germaine, who lives proximate to the subject property, addressed the Court prior to the commencement of the hearing. His concerns are summarised in the following:

Junction Road and Wahroonga Avenue have seen a significant increase in traffic and congestion over the last twenty or so years. It is Mr Germaine's observation that during the AM and PM peak, Junction Road experiences approximately 750 cars/hr, which creates a number of impacts. Firstly, it encourages 'rat-running' by vehicles in local streets; secondly, it creates safety and access concerns for pedestrians crossing Junction Road at the pedestrian island (particularly for disabled persons); and finally, it impacts the ability of vehicles to turn into and out of cross streets.
that the development of the subject site will add to these existing issues and exacerbate his concerns about the safety and practicality of pedestrians, and persons with a disability, crossing Junction Road to access bus stops.
the site is located on a corner site and will generate more vehicles turning onto Junction Road at a place of poor visibility due to the location of the bus stop and the gradient of the road.
the density of the development, 10 dwellings on the subject site, is an overdevelopment of the site.
the existing significant gum trees should be retained.
the locality has an existing cluster of aged and disability housing.

The Respondent does not raise traffic or road safety concerns in relation to the application. The Respondent's bundle (Exhibit 2) contains an assessment of the proposed vehicle access arrangements and the adequacy of the traffic assessment report by a Council Engineer. Whilst I have given consideration to the concerns of Mr Germaine, I have no evidence in the proceedings that would support a conclusion that the proposed development, as amended, will have a detrimental traffic or safety impact.
I note that the amended plans have relocated the vehicular access to the proposed development to Wahroonga Avenue (a secondary street) and include the retention of a number of significant canopy trees within the site. I note Mr Germaine concerns in relation to the traffic congestion in Junction Road and the crossing of it by pedestrians. I have no expert evidence to support an assertion that the effectiveness of the crossing will be affected to a material extent by the application before the Court.

Planning framework

The Respondent notes that s 1.3 an object of the EPA Act is: '(g) to promote good design and the amenity of the built environment'.
The development application is made pursuant to SEPP HSPD, which applies to the site in accordance with the provisions at cl 4(1)(a)(i). The aims of SEPP HSPD are: (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.
SEPP HSPD states at cl 2(3) that these aims will be achieved in three ways. Firstly, by setting aside local planning controls that would prevent the development of housing for seniors or people with a disability; secondly, setting out design principles that should be followed to achieve a built form response to the site characteristics and form; and thirdly, by ensuring applicants provide support services.
'Floor space ratio' (FSR) is defined by SEPP HSPD as: floor space ratio in relation to a building, means the ratio of the gross floor area of the building (exclusive of the area of any car port or garage) to the area of the allotment on which the building is or is proposed to be erected.
'Gross floor area' is defined by SEPP HSPD as: gross floor area means the sum of the areas of each floor of a building, where the area of each floor is taken to be the area within the outer face of the external enclosing walls (as measured at a height of 1,400 millimetres above each floor level) - (a) excluding columns, fin walls, sun control devices and any elements, projections or works outside the general lines of the outer face of the external wall, and (b) excluding cooling towers, machinery and plant rooms, ancillary storage space and vertical air conditioning ducts, and (c) excluding car parking needed to meet any requirements of this Policy or the council of the local government area concerned and any internal access to such parking, and (d) including in the case of in-fill self-care housing any car parking (other than for visitors) in excess of 1 per dwelling that is provided at ground level, and (e) excluding space for the loading and unloading of goods, and (f) in the case of a residential care facility - excluding any floor space below ground level that is used for service activities provided by the facility.
The application proposes 'self-contained dwellings' which are defined at cl 13(1) of SEPP HSDP as: a self-contained dwelling is a dwelling or part of a building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in the dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.
The specific type of self-contained dwellings proposed is 'infill self-care housing': cl 13(2) of SEPP HSPD.
The parties agree, and I am satisfied, that the application meets the location and access to facilities requirements set out in cl 26(1) of SEPP HSPD.
Clause 29 of SEPP HSPD states: (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. Note. Clause 24 (1) sets out the development applications to which that clause applies. (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). (3) Nothing in this clause limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies.
The relevant criteria referred to in cl 29(2) are: 25 Application for site compatibility certificate (5) The relevant panel must not issue a site compatibility certificate unless the relevant panel - … (b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria - (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,
The Respondent argues that cl 25(5)(b)(v) is not met by the proposed development.
The parties agree, and I am satisfied, that the Applicant has prepared and taken into account a site analysis as required by cl 30 of SEPP HSPD.
Clause 31 of SEPP HSPD requires that in determining an application for infill self-care housing that 'a consent authority must take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004' (Seniors Policy).
A consent authority must not consent to a development application made pursuant to SEPP HSPD unless the consent authority is satisfied that the proposal demonstrates that adequate regard has been given to the principles set out in Division 2 of SEPP HSPD, at cl 32.
The Respondent argues that the proposed development does not demonstrate adequate regard to the following specific principles in Division 2: 33 Neighbourhood amenity and streetscape The proposed development should - (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by - (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone. … 35 Solar access and design for climate The proposed development should - (a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction. Note. AMCORD: A National Resource Document for Residential Development, 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to the climatic conditions.
The Applicant has prepared and filed a design statement which details the architect's consideration of the Design Principles at Div 2 of SEPP HSPD in the proposed design (Exhibit N). I have read and given consideration to this statement.
The parties accept, and I am satisfied, that the proposed development meets the development standards at Part 4, Div 1 cl 40 of SEPP HSPD.
Clause 46 of SEPP HSPD states: 46 Inter-relationship of Part with design principles in Part 3 (1) Nothing in this Part permits the granting of consent to a development application made pursuant to this Chapter if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the principles set out in Division 2 of Part 3. Note. It is considered possible to achieve good design and achieve density ratios set out in Division 2. Good design is critical to meriting these density ratios. (2) For the avoidance of doubt, nothing in this Part limits the matters to which the relevant panel may have regard in refusing to issue a site compatibility certificate.
Clause 50 of SEPP HSPD sets out the development standards that, if met by an application, cannot be used to refuse the application, 'do not refuse' standards. Relevantly, the parties experts disagree on the calculation of FSR and the whether there is adequate provision of deep soil at the rear of the site. There is, therefore, disagreement of whether the following 'do not refuse' standards are met at cl 50: ... (b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less, … (d) Deep soil zones: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15% of the area of the site (the deep soil zone). Two-thirds of the deep soil zone should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3 metres, …
Relevant to the issues in dispute in the proceedings the Seniors Policy, as referenced in cl 31 of SEPP HSPD, contains guidance on 'Responding to Context' at Chapter 1, 'Site Planning and Design' at Chapter 2, and 'Impacts on Streetscape' at Chapter 3.
Pursuant to LEP 2015, the zoning and development standards that apply to the adjoining properties can be summarised as:

Zoning: R2 Low Density Residential,
FSR 0.3:1: cl 4.4(2A) of LEP 2015 (note variable on lot size),
Maximum building height of 9.5m.

The DCP provides controls for building setbacks at section 4A.2. In terms of front setbacks, the relevant controls are: (1) The location of development on the site is to demonstrate its consideration of: i) the existing setback of adjoining properties; ii) the setback pattern of its street block; and iii) Council's minimum and average setback requirements. (2) Minimum and average front setbacks are to be provided in accordance with the following table and illustrated in Figure 4A.2-1. … (4) Buildings are to be located so that at least 75% of the front elevation of the building is set back not less than the specified average setbacks, and the balance of the building frontage (not more than 25%) may be located up to the minimum setback.
The provisions for setbacks on allotments with a dual street frontage or corner sites are: (15) The minimum and average setbacks to the secondary street frontage on corner sites are as per the following table and illustrated in Figure 4A.2-7: (16) On secondary street frontages, buildings are to be located so that not more than 50% of the secondary front elevation of the building is set back not less than 3.8m, and at least 50% of the secondary front elevation of the building is to be located to average a 4.5m setback.

Expert evidence

The Applicant relied on the expert evidence of Andrew Minto (Planning), Guy Paroissien (Arborist) and Lucas McKinnon (Ecologist).
The Respondent relied on the expert evidence of Jonathon Goodwill (Planning), Michael Zanardo (Urban Design), Geoff Bird (Arborist) and John Whyte (Ecologist).
The experts prepared joint reports for urban design and planning (Exhibit 3), Arboriculture (Exhibit 4), and Ecology (Exhibit 5). Only the planning and urban design experts were required to give evidence.

What is the FSR of the proposed development?

The planning and urban design experts engaged by the parties disagree as to the appropriate application of the Gross Floor Area (GFA) definition in SEPP HSPD (refer to [20]).
The evidence of Mr Minto can be summarised as:

utilising the architectural plans (drawings A5 and A6), the GFA is 1,214.29m². Therefore on the basis of a site area of 2,434m², the FSR is 0.498:1.
that the exclusions to GFA nominated in those plans are appropriate on the following reasoning: "1. In relation to the stairs linking the ground floor with the first floor that they are only required to be counted once given that gross floor area is measured at a height of 1400mm above the floor level. 2. The same application is applicable in relation to the lift. 3. The exclusion of the stairs giving access to the basement car parking is applicable on the basis that those stairs are providing access to the required car parking." (Exhibit 3)
Further, that if his approach is incorrect that the 0.5:1 is a 'do not refuse' standard and on merit the variation of 39.59m² is minor and warranted. (Exhibit 3)

In the alternative, Mr Zanardo argues that the GFA has not been calculated in accordance with the definition in SEPP HSPD. He argues:

The areas of lifts and stairs at the ground level within Dwellings 1-7 should not be excluded on the basis that these areas are 'areas with the outer face of the external enclosing walls' and do not fall within any of the definitional exclusions.
The areas of the lifts and the stairs at the ground floor and the upper floor should not be excluded on the basis that they are 'internal access to parking' as they also form access to the upper floors of the dwelling.
Further, they should be counted at both levels (1.4m from the floor level) as there is no exclusion in the definition for void spaces.
It is acceptable to exclude the areas of the lifts and the stairs within the basement car park as they fall within 'internal access to parking'.

On the preceding reasoning, Mr Zanardo notes that the following additional areas should be added to the nominated GFA:

the areas of the stairs and the lifts at ground level within Dwellings 1-7. The additional floor area would comprise a total of 42.3m²

On Mr Zanardo's approach, the GFA of the proposed development is calculated as 1,256.59m², with an FSR of 0.516:1. He argues that the additional GFA increases the footprint of the development and contributes to the design issues addressed in the following two questions.
Given my findings in the following that the form of the development is acceptable, and compatible with the character of the locality, it is not necessary to determine whether the development is compliant with the 'do not refuse' standard of 0.5:1 FSR.
This is because irrespective of compliance with a specific 'do not refuse' standard, I am satisfied following assessment that the extent, scale and form of development proposed is acceptable on merit.

Compliance with the Deep Soil 'do not refuse' standard

The planning and urban design experts agree that the proposed development meets the 'do not refuse' standard for deep soil zones at cl 50(d) of SEPP HSPD (Exhibit 3).They conclude that the development provides deep soil zones of 545m² (or 22%), in excess of the 'do not refuse' standard of 15%.
However, the experts disagree whether the proposed development provides two thirds of that deep soil area at the rear of the site.
I am satisfied that, on its face, the provision at cl 50(d) of SEPP HSPD only expresses a preference for a proportion of that deep soil to be located at the rear of the site (refer to [34]). I accept the evidence of Mr Minto in this regard.
Further, I am satisfied that, on an assessment of the merits, the application's provision of deep soil landscape zones is appropriate.

Is the development compatible with the character of the locality?

Council contends that the proposed development is excessive in density and scale. Further, they argue that it represents an overdevelopment of the site when proper regard is had to contextual fit. Council argues that the design of the development fails firstly to recognise the desirable elements of the locations current character; and secondly, to give adequate regard to these characteristics in the design of the proposed development.
The Council concludes that applying the principles in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council (2003) 131 LGERA 383; [2003] NSWLEC 268 at [14]-[20] (GPC v Wollongong) and the subsequent decision in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, at [22] and [24]-[30], (Project Venture v Pittwater), the development proposed is not compatible with the character of the locality. Relevant to SEPP HSPD, Council argues the development fails to demonstrate adequate regard has been had to the design principle relating to neighbourhood amenity and streetscape at cl 33 of SEPP HSPD (refer to [30]).
Council concludes that, on the evidence before it, the Court will not be satisfied that the precondition in cl 32 of SEPP HSPD is met and the application should be refused on that basis.

The existing character

Relying on the Amended Statement of Facts and Contentions (Exhibit 1), it is Mr Zanardo's position that the existing environmental and built character of this part of Wahroonga is agreed to be:

single storey and two storey dwellings,
rectangular allotments,
generous landscaping in setback areas,
a pattern of planting in the rear yards of properties,
prevalence of canopy planting within the road reserve and in front setbacks, and
landscape elements (trees and mature plantings) being a dominant feature of the streetscape.

Mr Zanardo identifies that the zoning of the locality, R2 Low Density Residential, does not envisage a future substantial change in character and that the existing landscaped environment is attractive and that there is value in new development reproducing it.
Mr Minto agrees with the preceding characterisation of the locality, with the exception of the assertion that the locality has a pattern of planting in rear yards. By reference to the aerial photograph in Exhibit C, Mr Minto's evidence is that planting in rear yards is not a distinctive characteristic of the locality.
Further, it is Mr Minto's evidence that the site is distinct from the surrounding properties in that it is a corner allotment which has effectively equal frontage to both Junction Road and Wahroonga Avenue. Mr Minto observes that the subject site is of a materially larger lot size than is typical in the locality. Mr Minto argues that these characteristics, along with the recognition that through the provisions of SEPP HSPD, the density and form of the development that is proposed is different to development that is permissible in the R2 Low Density Residential zone, meaning that it is appropriate for the proposed development to be in sympathy with, but not the same as the character of the locality. He notes that this is the test established by the planning principle in Project Venture v Pittwater.
The experts agree that the building setbacks in Junction Road are inconsistent and have high variability. However, the experts disagree as to whether, applying the principles in Project Venture v Pittwater, the development is compatible with the existing setback pattern.

Compatibility

In his evidence, Mr Zanardo places emphasis on the use of the terms 'spatial arrangement' in the definition of streetscape utilised by SEPP HSPD at cl 3(1). He argues that 'The inclusion of the words 'spatial arrangement' (in addition to 'visual appearance') means that the building length and setback should be critical considerations in the assessment of streetscape as well as whether views are restricted by landscape screening. The overdevelopment of the proposal with its increased footprint (as discussed at Contention 7) can be seen as a contributing factor to the small setback to Junction Road street edge' (Exhibit 3).
In summary, Mr Zanardo identifies the following characteristics of the proposed development that contribute to his conclusion that the development is incompatible with the character of the locality:

The length of the building fronting Junction Road. It is Mr Zanardo's evidence that: 'the building fronting Junction Road at 36m is the longest two-storey building in the area set this close to the street edge, noting that porches to dwellings further encroach within the front setback, coming as close as 6.3m to the street edge' (Exhibit 3).
The building lacks articulation in the Junction Road frontage. It is Mr Zanardo'sview that the form of the proposed development will maintain a presentation of a continuous two-storey street wall to Junction Road. He concludes that the articulation provided by the architectural design, in the vicinity of Unit 3, will not appear as an effective separation in the building or act to break up the building bulk.
That the long length of the proposed building frontage Junction Road, along with the building forms proximity to the front boundary, make the building 'unduly prominent in the streetscape which will detract from the quality and identity of an area' (Exhibit 3).
That the small setback to Junction Road does not allow for generous landscaping within the setback, nor allow for the landscape to be the dominant feature in the streetscape which is a characteristic of the locality. (Exhibit 3)

Mr Zanardo concludes that the lack of setback and the proposed building length results in the development being incompatible. His reasoning is as follows: "In terms of visual compatibility, the proposal is not considered to respond to the essential elements that make up the character of the surrounding environment, particularly the relationship of the built form to surrounding space created by building setbacks and landscape. The small front setback to the building fronting Junction Road is not considered to reduce the bulk of the development (inconsistent with SEPP HSPD 33(c)(i)) because the building is closer to the street edge than it should be, or be setback in sympathy with the existing building line (inconsistent with SEPP HSPD 33(d)), as it is less that the setback of immediate neighbours as well as being less than the setback of any other 2 storey building of this length in the vicinity." (Exhibit 3)
Further, it is Mr Zanardo's evidence that the siting of the building and the area available for landscaping, which is one of the defining characteristics of the locality. His reasoning is as follows: "In terms of landscaping, the proposed setbacks do not provide the same opportunities for planting canopy trees which are a defining characteristic of the local area. This includes at the rear of the site where large canopy trees are a desirable element of the location's character. … In these ways, the proposed development is not considered to recognise the desirable elements of the location's current character and is therefore not considered to contribute positively to the quality and identity of the area (inconsistent with SEPP HSPD 33(a))." (Exhibit 3)
Mr Zanardo concludes that the proposed development does not adequately consider its design in context which results in: poor street address, privacy impacts to neighbours, insufficient setbacks, excessive building length and bulk. He argues that the design has not been 'properly informed by and derived from its location and context and is not resonant with local character' (Exhibit 3).
Mr Minto disagrees that the length of the building fronting Junction Road is incompatible with the character of the locality. He argues:

The apparent length of the building is offset by 'significant vertical and horizontal articulation incorporated into the revised proposal, combined with the varying building materials' (Exhibit 3). It is Mr Minto's assessment that the design will appear as two x two-storey dwellings with pitched roofs, separated by a two-storey skillion roof section. Given this articulation in the building form, he disagrees with the evidence of Mr Zanardo that the development will present as a continuous two-storey street wall to Junction Road.
That views of the proposal from Junction Road will be significantly screened by the retention of the existing front boundary fence, the retained hedge planting and the supplementary planting proposed in the front setback to Junction Road. In reaching this conclusion, Mr Minto relies on the photo montages prepared by the Applicant of the view of the proposed development from the opposing corner of Junction Road and Wahroonga Avenue (Exhibit D).
The form of the development (rectilinear, pitched roof) and the inclusion of materials such as brick, rendered walls and stone cladding are consistent with character of the area.
The development seeks to retain the mature canopy trees onsite, including the large Oak tree located in the rear quadrant of the property. Additional planting is proposed in in keeping with the landscaped character of the area.
The height of the development is less than the maximum standard of 8m and is sympathetic to the ridgelines of the roofs of adjoining dwellings and dwellings within the sites visual catchment.

Simply put, Mr Minto's evidence is that the built form arising from the development will always be different to the form of development that occurs under LEP 2015. He argues that this outcome is consistent with the intent of SEPP HSPD to set aside local controls. Further, he argues that it does not follow that difference necessarily means that the development is not compatible with the character of the locality. It is his evidence that whilst the proposed development may be different, it is capable of existing in harmony with the character of the locality on the basis of his reasoning at [66].
In conclusion, Mr Minto states that: "… consistent with the Planning Principle established in Project Venture v Pittwater Council that the front building (line) of the development of the development is set back in sympathy with, but not necessarily the same as, the existing building line as required by Clause 33(d) of the SEPP. AM is of the opinion that this clause recognises that the SEPP seeks to introduce upon the site a form of development which would otherwise be prohibited and importantly development having a greater density and footprint than permissible development (dwelling houses). Accordingly it is to be expected that in order to achieve the primary aim of the SEPP (increase the supply and diversity of residences that the needs of seniors and people with a disability) that a relaxation of the setback controls which would ordinarily apply is necessary." (Exhibit 3)

Findings

In considering the contentions raised by the Council I accept the submission made by Mr Merlino that the principles in GPC v Wollongong are relevant to the current matter. I accept and apply the reasoning of Roseth SC in GPC v Wollongong at [14] that: The issue of compatibility between a SEPP 5 development and the surrounding low density zone arises in the majority of SEPP 5 cases. This is because the policy allows development with different physical characteristics to what is permissible under the zoning" (emphasis added)
A similar point is made by O'Neill C in Goldfields Central Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1434 at [33]: I am satisfied that the proposal is compatible with the existing character and desired future character of the locality. Importantly, the SEPP Seniors aims are achieved by setting aside local planning controls that would prevent the development. The FSR development standard for the site under LEP 2015 is 0.3:1 and the proposal has a FSR close to 0.5:1. As a consequence, the proposal will not match the existing density and scale of the surrounding development.
The operation of SEPP HSPD is that it allows a density and form of development on the subject site, by setting aside the provisions that would otherwise apply under LEP 2015 that would not otherwise be permitted by the local controls. I am satisfied that this fact is relevant to and informs the consideration of compatibility. A development of greater density, form and of a different type may not comply with all of the local planning controls, particularly those related to the siting of development or its building envelope.
Accepting the expert's assessment of the characteristics of the locality and the facultative provisions of SEPP HSPD, I prefer and accept the evidence of Mr Minto that the proposed development, whilst different, is compatible with the locality. My reasoning is as follows:

I accept the agreed position of the experts that the planning principle in Project Venture v Pittwater is relevant to the assessment of compatibility. I note at [31] of that judgment it concludes in part that: As people move through the city, they respond intuitively to what they see around them. A photomontage of a proposed development in its context provides the opportunity to test the above analysis [of compatibility] by viewing the proposal in the same way that a member of the public would' I accept and adopt this approach.
On a review of the architectural plans and the photomontage, I am not persuaded by Mr Zanardo's view that the front elevation of the building will be unduly prominent or excessively bulky when viewed from the public domain.
I am satisfied that in this case the retention of the existing front fence and its integration unto the development will act to moderate the built form and scale of the proposed development.
Properly considered, streetscape is perceived as an ambulatory experience. With a benefit of the onsite view, I accept the evidence of Mr Minto that when viewed in context the form of the building will 'read' as articulated through the use of horizontal and vertical changes in setback, materials and roof form.
The retention and planting of significant landscaping assists in ensuring compatibility, especially given the visual prominence of the landscaped character of the locality. I note that the arboricultural experts are agreed that, with the imposition of agreed conditions, their concerns in relation to the retention of the nominated trees are resolved (Exhibits 4 and 10).
Applying the principles in Project Venture v Pittwater, I am satisfied that the proposed building will not appear jarring or unsympathetic, despite being a more dense form of development.

I am satisfied that the design of the proposed development is an appropriate form of development for the subject site. Further, I am satisfied that it is compatible with the surrounding development, consistent with the planning principles in Project Venture v Pittwater.
I find that the provisions of cl 25(b)(i) and (v) of SEPP HSPD are satisfied.

Does the proposed development demonstrate that adequate regard has given to the design principles?

In order to grant consent to the development application, the consent authority must be satisfied that the proposed development demonstrates that adequate regard has been had to the principles detailed in Division 2 of SEPP HSPD (cl 32 SEPP HSPD). The Respondent argues that the proposed development does not meet that test with regard to the principles at cl 33: Neighbourhood Amenity and Streetscape, and cl 35: Solar Access and Design for Climate.
Further, at cl 31 of SEPP HSPD, in determining an application for the purpose of infill self-care housing, the Court must take into consideration the provisions of 'Seniors Living Policy: Urban Design Guidelines for Infill Development' (Seniors Policy).
In undertaking these considerations, the Respondent argues that:

Dwellings 8 and 9 are at the rear of the site and have a circuitous access path, providing poor street address;
The communal open space provision is of poor amenity, has poor solar amenity due to overshadowing, and is not useable;
There is potential for overlooking to the adjoining neighbour from Dwelling 9;
There is insufficient provision of deep soil in the rear quadrant of the site; and
The development is not of good design.

Dwellings 8 & 9

The experts disagree whether Dwellings 8 and 9 have 'entries that are clear and identifiable and provide a sense of address for each building' (Exhibit 3).
This statement arises, in part, from the Seniors Policy. It contains a Design Principle under the 'Site Planning and Design' section of the document which states: "Built Form: - locate the bulk of the development towards the front of the site to maximise the number of dwellings with frontage to a public street. - parts of the development towards the rear of the site should be more modest in scale to limit the impacts on adjoining properties." (Exhibit 2)
Further, within the 'Internal Site Amenity' section of the Seniors Policy it states, under design principle Built Form: "… Design dwelling entries so that they: - are clear and identifiable from the street or driveway. - provide a buffer between public/communal open space and private dwellings. - provide a sense of address for each dwelling. - are oriented not to look directly into other dwellings." (Exhibit 2)
Mr Zanardo's evidence is that the entries to Dwellings 8 and 9 are not clear and identifiable from the street or the driveway (they cannot be seen) and do not provide a sense of address to each dwelling. He argues the siting and design of Dwellings 8 and 9 are inconsistent with the Seniors Policy. Further, he expresses concern that the pedestrian paths proposed off Wahroonga Avenue to the 'entry structure' are neither straight nor direct. He concludes the path of entry to Dwellings 8 and 9 will not be intuitive and is not of good design (Exhibit 3).
In the alternative, Mr Minto argues that the entries to Dwellings 8 and 9 are clear, identifiable and provide a sense of address. His reasoning is: "i. Access to Dwellings 8 & 9 is via a centrally located pathway which runs in an east west direction. Access to the central pathway is achieved via entry points located in the south eastern and north eastern corners of the site and which connect with a pathway which runs parallel with the Wahroonga Avenue street boundary. ii. The proposed pathways and entry points have been located in response to access to the bus stop and on street parking together with existing trees to be retained. iii. AM notes that the entry points and pathways will need to be complemented by appropriate way finding signage and that the provision and reliance of such signage is not unusual for a multi-dwelling housing development." (Exhibit 3)

Communal open space

The experts disagree whether the proposal provides quality useable communal open space that is accessible for all residents (Exhibit 3).
The Respondent contends that the proposed development is inconsistent with the following design principle from the Seniors Policy: " provide communal open space that: - is clearly and easily accessible to all residents and easy to maintain. - incorporates existing native trees and vegetation to provide additional amenity for all residents. - includes shared facilities such as seating areas and barbeques to permit resident interaction" (Exhibit 2)
Mr Zanardo argues that the proposed development does not meet these principles on the following grounds:

The communal open space is not easily accessible to residents of Dwellings 5, 6 & 7 from their rear patios due to the presence of steps.
The communal open space is not high quality as it is overshadowed most of the day during mid-winter.
The communal open space is narrow and linear, and acts as more of a movement pathway than a useable space.
Does not provide adequate space for tree planting or shared facilities. (Exhibit 2)

In his evidence, Mr Minto notes that the provision of communal open space is not a requirement of SEPP HSPD. He argues that instead at cl 50 of SEPP HSPD provides parameters for the provision of landscaped areas, private open space and solar access controls for the living areas and private open space of dwellings. Mr Minto notes that these requirements are met by the proposed development.
Notwithstanding that on his evidence communal open space is not required Mr Minto is of the opinion that the area provided is a positive aspect of the development. He notes:

it is a paved area with bench seats located towards the centre of the site.
the access for Dwellings 1-4 and 8 & 9 to the communal space is direct, but access for Dwellings 5-7 involves between 2 and 4 steps. Access via the main pathway is available should disabled access be required.
that the consideration of the solar access to the communal open space, and its overall functionality, need to be considered in the context of the provision of private open space to each dwelling. He argues that each of the dwelling have private open space of high amenity (complaint with solar access amenity criteria) that are likely to be used for recreation and entertainment.

In his oral evidence, Mr Minto argues that the communal open space proposed by the development is a positive aspect of the proposal which provides an appropriate space for residents to meet as they go about their day to day activities.

Overlooking

The experts disagree whether there exists a potential for overlooking from Dwelling 9 to the open space of the adjoining neighbour to the west of the subject site.
Mr Zanardo argues that, due to the level of the patio of Dwelling 9, a view to the rear yard of the adjoining neighbour is available over the boundary fence. Applying the planning principle in Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 at [6], Mr Zanardo argues landscaping should not be relied on to ameliorate this impact (Exhibit 3).
Mr Minto argues that the potential for any overlooking needs to be considered in the context of the setback of the proposed development from the side boundary (4m), the configuration of the neighbours private open space areas and the effects of the proposed screen planting along this boundary (Exhibit 3).

Deep soil

The expert evidence in relation to the provision of deep soil is detailed at [49]-[50].

Design

Finally, Mr Zanardo argues that when viewed collectively these attributes of the proposed development (detailed at [77]) demonstrate that it does not meet the aims of SEPP HSPD at cl 2(1)(c) to 'be of good design'. In his evidence, Mr Zanardo refers to the publication 'Better Placed- An Integrated Design Policy for the Built Environment of NSW' produced by the Government Architect of NSW ('Better Placed').
Mr Zanardo considers that the document Better Placed is applicable to the assessment of the application and should be afforded weight by the Court. He argues this on the basis that:

The document has been placed on public exhibition.
In July 2017 it was adopted as State government policy.
It is referred to in the Department of Planning and Environment's Planning Circular 18-001.
It is relevant to the newly inserted object of the EPA Act s 1.3(g) 'to promote good design and amenity of the built environment'.
It was applied by the Court in Zammit v Inner West Council [2019] NSWLEC 1074 at [43]-[54] (Zammit v Inner West Council).

Mr Zanardo concludes that in addition to not meeting the design principles detailed in SEPP HSPD at cl 33(a), (c)(i), and (d), the proposal does not meet the objective of 'Better Fit' detailed in Better Placed. He argues that the 'broad provisions of 'Better Placed' can be seen to reinforce and strengthen the specific design provisions of SEPP HSPD to meet both the SEPP HSPD (2)(1)(c) aim to 'encourage the provision of housing that will be of good design' and the Environmental Planning and Assessment Act 1.3(g) object to 'promote good design and amenity of the built environment'. (Exhibit 3)
In the alternative, Mr Minto's evidence that whilst Better Placed may be of assistance in understanding good design principles it is 'not a document that should be given significant weight in the assessment of the application' (Exhibit 3). He concludes: "It is considered that it is not a document which is required to be taken into consideration by Clause 4.15 of the Environmental Planning and Assessment Act 1979, given that it is not an applicable Environmental Planning Instrument or DCP or a document identified as being applicable by either an EPI or DCP. It is considered the primary purpose of Better Placed is to influence the formulation of future of Environmental Planning Instruments and Development Control Plan." (Exhibit 3)

Findings

The requirement at cl 32 of SEPP HSPD for adequate regard to the principles concerns the whole of the principles listed in Division 2: Design Principles. The consent authority is required to be satisfied that the proposed development demonstrates adequate regard to the design principles when viewed collectively. I am persuaded by the evidence that the proposed development demonstrates adequate regard to the principles in Division 2 of SEPP HSPD on the following grounds:

For the reasons detailed at [69]-[74], I am satisfied that the proposed development has given adequate regard to the principle at cl 33: Neighbourhood Amenity and Streetscape.
I prefer and accept the evidence of Mr Minto that Dwellings 8 and 9 are appropriately located within the site, have a clear entry location delineated within the design of the proposal and appropriate signage locations are proposed. I am not persuaded that a porch structure with frontage to a common space, which provides a clear and recognisable path of entry, is inconsistent with the Seniors Policy or is of poor design.
I accept the evidence of Mr Minto that the provision of communal open space is not a requirement of SEPP HSPD in the circumstances of this development application. I accept Mr Minto's view that given the applications compliance with the development standards at cl 50 of SEPP HSPD, the residents will have adequate private open space and living spaces with solar amenity which would be likely utilised by residents in preference to the proposed communal space. In this context, whilst the communal open space may provide a linear space associated with pedestrian movement, I am satisfied when considered along with the communal planting areas provided adjacent the property boundaries it is of appropriate scale and amenity.
I am satisfied that the proposed development has given adequate regard to the principle at cl 35: Solar Access and Design for Climate.
In relation to the potential for overlooking to the adjoining neighbour from Dwelling 9, I accept Mr Zanardo's evidence that such a view is a potential outcome of the development. I am satisfied it is appropriate to ameliorate this privacy impact through the inclusion of the following condition on the development consent: "3. Amended architectural plans Prior to the issue of a Construction Certificate, the Certifier shall be satisfied that the approved plans listed in Condition 1 have been amended in accordance with the requirements identified below: … vii. So as to minimise overlooking of the rear yard of the adjoining property at Wahroonga Avenue, a freestanding privacy screen is to be placed for the width of the patio/deck of unit 9. From a minimum of RL 190.00, the privacy screen is to be constructed of horizontal powder coated aluminium battens (50mm) with a maximum 10mm gap. The privacy screen is to have a top height of RL 191.00 and is to be located 900mm from the dividing fence. The fence is to be a dark recessive colour." I note that such a condition was canvased with the Applicant and the Respondent during the proceedings and is agreed.

Finally, I am not persuaded by Mr Zanardo's collective argument that the proposed development does not represent 'good design' as referrable to the document 'Better Placed' or that the development does not meet the aims of SEPP HSPD. My reasoning is as follows:

The requirement for the development to achieve or be consistent with the aims of SEPP HSPD is not a direct requirement within a provision of the instrument.
Section 4.15(1)(a)(i) of the EPA Act requires the consent authority to take into consideration the provisions of any environmental planning instrument. In this case SEPP HSPD has specific provisions, and design principles (Division 2) that address and encompass design criteria.
A reference to 'Better Placed' is not a consideration mandated or envisaged by either SEPP HSPD or s 4.15(1)(a)(i) of the EPA Act. The state of satisfaction that is required to be reached by the consent authority about the design of the residential development is detailed at cl 32 of SEPP HSPD. In the context of an application which is subject to provisions that directly address design, I am not persuaded that Better Placed has statutory weight in the consideration of the development proposed by this application.
The Respondent also raised the decision of the Court in Zammit v Inner West Council, and the document 'Better Placed'. In my view, in these proceedings, the document 'Better Placed' is a consideration under the public interest (s 4.15(1)(e) of the Act), no higher.

In determining the application, I have taken into consideration the provisions of the Seniors Policy, as required by cl 31 of SEPP HSPD.
In conclusion, I am satisfied that the development satisfies the preconditions in SEPP HSPD and that for the reasons outlined in the preceding, the application is acceptable after a merit assessment under s 4.15 of the EPA Act. Development consent is granted on a conditional basis.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to DA/0386/18 for demolition of a single storey house, the construction of nine self-contained dwellings over one level of basement carpark under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 at 70 Junction Road, Wahroonga (Lot B DP 356612) subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits 1, C and L.

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: 20 March 2020

(2003) 131 LGERA 383

(2004) 133 LGERA 363

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