Pertama Development Pty Ltd v Waverley Council [2021] NSWLEC 1785 | Case summary

Land and Environment Court (NSW)|2021-11-03

The applicant's position that the proposed development meets the provisions of the SEPP HSPD

As set out above, Pertama's position is that the proposed development meets the provisions of the SEPP HSPD. Mr Pickles SC made a number of submissions on the interpretation of the provisions in the instrument, and on whether the FSR development standard in the WLEP can be considered.
Firstly, Pertama submits that the proposed development meets the development standard in cl 40(4)(b) of the SEPP HSPD, which requires that "a building that is adjacent to a boundary of the site… must be not more than 2 storeys in height". This submission is on the basis that a "building" is defined in the EPA Act to include "part of a building" (EPA Act s 1.4), and that the word "adjacent" must have some work to do, otherwise, as submitted by Pertama, the whole building would be required to be two storeys. Accordingly, Pertama submits that the side setback of the third storey of the proposed development, which is greater than the side setback of the storeys below, is sufficient to meet the development standard in cl 40(4)(b), as that part of the building that is adjacent to a boundary of the site is not more than two storeys.
In the event that the Court does not accept this submission, Pertama has submitted a cl 4.6 request concerning the breach of the development standard, and relies on the agreed evidence of the town planners that the design of the proposed development does not cause an abrupt change of scale from the proposed building to the adjacent residential dwellings.

The FSR development standard is not set aside by inconsistency

Contrary to the submission made by Pertama, the FSR development standard in cl 4.4 of the WLEP is not set aside by an inconsistency with the SEPP HSPD, and can be taken into account in considering the appropriateness of the density and scale of the proposed development.
The submissions made by Pertama concerning the inconsistency between cl 50(b) of the SEPP HSPD and the FSR development standard in cl 4.4 of the WLEP, are based on a number of assumptions that cannot be sustained. Firstly, Pertama assumes that cl 50 of the SEPP HSPD implicitly permits an unconstrained FSR allowance in the event that the "must not refuse" criteria are not met. There is no such implicit meaning. The implicit meaning of cl 50 is instead that it allows a proposed development to be refused on the grounds set out in the subclauses if the conditions in the subclauses are not met. In relation to the application of cl 50(b) to the proposed development, the failure of the proposed development to meet the "must not refuse" criteria for density and scale means that it is open to the Court, in exercising the functions of the consent authority, to refuse the development application on the basis of density and scale.
The second assumption made by Pertama that cannot be sustained (which was conceded) is that cl 4.4 of the WLEP is a prohibition. Instead, cl 4.4 sets a development standard, within the meaning of "development standards" in s 1.4 of the EPA Act, and it is well established that a development standard is distinct from a prohibition (see, for example, the discussion in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270).
The third assumption made by Pertama that cannot be sustained, which was advanced only upon conceding that cl 4.4 is not a prohibition, is that cl 50(b) sets a 'standard' that is inconsistent with the 'standard' cl 4.4. Factually this is wrong. The development standard in cl 4.4 of the WLEP and the standard in cl 50(b) of the SEPP HSPD are identical, they both require a FSR of 0.5:1. There is no inconsistency in that respect.
In fact, contrary to the submissions made by Pertama, cl 4.4 of the WLEP and cl 50(b) of the SEPP HSPD are not inconsistent. Arguing that a "must not refuse" criteria is inconsistent with a development standard with the same FSR value is akin to arguing that a glass "half full" is inconsistent with a glass "half empty". They are precisely the same measure, expressed differently. If the FSR of the proposed development was less than 0.5:1, then the proposed development would comply with both cl 4.4 of the WLEP and cl 50(b) of the SEPP HSPD. In circumstances where it is greater than 0.5:1, it complies with neither. Accordingly, it can be refused on the basis of its density and scale in accordance with the SEPP HSPD, and it does not comply with the FSR development standard in the WLEP. There is no inconsistency and they are capable of operating concurrently.
As such, the FSR development standard applies to the site and I can have regard to it in considering the density and scale of the proposed development.
If there is any inconsistency between the WLEP and the SEPP HSPD, it is between the provisions of cl 4.6(4) of the WLEP as they apply to the breach of the FSR development standard, and cl 15 of the SEPP HSPD, as a result of the ratio of McColl JA in Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 (Hastings Point). This is because, as set out by Moore J in Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130 at [104], cl 4.6(4) imposes a "series of mandated states of satisfaction to be achieved before the beneficial and facultative power to dispense with compliance with the development standards can be invoked" which is inconsistent with what the Court of Appeal found to be the permissive purpose of Chapter 3 of the SEPP HSPD to allow development "despite the provisions of any other environmental planning instrument". For those reasons, Moore J found that the Court is bound by the decision in Hastings Point and a cl 4.6 request is not required for the breach of a FSR development standard where the SEPP HSPD applies. The principle of judicial comity requires that I follow the decision of his Honour, unless I consider that the decision is "plainly wrong". It is clearly arguable that the decision in Hastings Point binds the Court where cl 4.6(4) imposes similar mandates to the clause considered by the Court of Appeal in Hastings Point, however, I need not consider this further as I have found, below, that the proposed development should be refused on the basis that it is of unacceptable scale.
Similarly, I need not consider whether there is compliance by the proposed development with the requirement in cl 40(4)(b) for "a building that is adjacent to a boundary of the site… must be not more than 2 storeys" because of the additional setback of the upper storey. I note, however, the Court has previously found that the additional setback of a third storey relative to the first and second storeys did not achieve compliance with cl 40(4)(b) and a cl 4.6 request was required: see Binetter v Woollahra Municipal Council [2019] NSWLEC 1116 at [47] and Pertama Development Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1581 at [11].

The proposed development is of unacceptable scale

It is common ground that the proposed development does not meet the "must not refuse" criteria in cl 50(b) of the SEPP HSPD for density and scale. Accordingly, there is nothing that prevents the Court, in exercising the functions of the consent authority, from refusing the development application on the basis of its density and scale. For the reasons that are set out below, I consider that the proposed development is of unacceptable scale.
Firstly, the excessive building frontage width is uncharacteristic of development within the locality or in the visual catchment of the site. I accept the evidence of Mr McDonald that the ground floor footprint width of approximately 27m is uncharacteristically large, and the break in the building and the third storey recess is not sufficient to prevent the building from being read as uncharacteristically large and bulky. This is clearly in contrast to the established subdivision pattern in the predominantly low-density residential context in which the site is located. I accept the evidence of Mr Williams that the resultant built form is a marked departure from the existing block and lot pattern characteristic of the streetscape, and significantly alters the pattern of buildings and open space. The scale of the proposed development is therefore out of character in the streetscape and contrary to the first principle in SLP Urban Design Guidelines, which suggests that "new development should contribute to the overall character of the area, or, in other words, have a good 'neighbourhood fit'."
Secondly, the scale of the built form contains excessive bulk that does not follow the topography of the land or provide adequate upper level recess to reduce its perception as a three-storey building. The roof plane has an area of around 480-500m2, and steps down from the eastern side of the building to the western side by only 600mm compared to the fall of the site of 2.5m (or 4m fall along the footpath). This, together with the fact that the third storey remains highly visible in the streetscape due to only a limited recess, means that, as set out by Mr McDonald, the third storey component is a predominant feature in the building's presentation. I consider that this exacerbates the perception of bulk across the width of the site. This does not maintain residential character that is appropriate for a streetscape dominated by single dwellings that step down with the topography of the land. As such, I am not satisfied that there has been adequate regard to the principles in cl 33(c)(i) and (ii) of the SEPP HSPD, which requires the proposed development to maintain appropriate residential character "providing building setbacks to reduce bulk" and "using building form and siting that relates to a site's land form".
Thirdly, the excessive scale, with the bulk contained in the third storey, has discernible impacts on the views currently enjoyed from the living areas of 59 Beaumont Street. The additional floor space, over and above the FSR development standard that applies to development on the site, creates bulk in the form of the upper storey that has direct impacts on views. In particular, the fact that the roof plane does not step down to the same extent as the slope of the land means that the western extent of the third storey and its roof plane will result in a loss of views from the living room, dining room and balcony of 59 Beaumont Street to the land water interface comprising Rose Bay, Woollahra Point and the land water interface of Point Piper and Shark Island within Sydney Harbour. The views to the city skyline will be retained, as will the views to the land and water interface further to the west. I do not accept the submission by Pertama that compliance with the height standard of 8m renders the view loss acceptable. The combination of the controls that apply to the site, including the setback controls in the WDCP, the height control in the SEPP HSPD and the FSR standard (set by either the WLEP or cl 50(b) of the SEPP HSPD), gives latitude for the development to be designed to respond to its context and to have the bulk and height positioned in a way that follows the topography of the site and reduces its impacts, including on views. In considering the loss of views, I do not accept the assessment of Mr Mead that it ought to be compared to the impact of three dwellings across the site in the form of the dwelling located on 59 Beaumont Street. The acceptability of the loss of views is not assessed by reference to a hypothetical alternative development, but by reference to the planning framework that applies to the site and the proposed development. In circumstances where the scale of the development results in excess bulk in the upper storey, which does not step down with the topography of the site and grossly exceeds the FSR development standard that applies to the site, and the excess bulk in that form causes a moderate impact on views, the scale of the development is unacceptable.
For these reasons, I find that the proposed development is of unacceptable scale, and the development application should be refused on that basis. In reaching this conclusion, for the reasons set out above, I also consider that the design of the proposed development is not consistent with the principles in the SLP Urban Design Guidelines concerning achieving a good neighbourhood fit, and does not have adequate regard to the principles in Div 2 of the SEPP HSPD concerning neighbourhood amenity and streetscape, contrary to cl 32 of the SEPP HSPD. These reasons alone are a sufficient basis upon which the proposed development ought to be refused.

The proposed development is not appropriate for the site as the pathway is not suitable

The second basis upon which the proposed development should be refused is that the pathway to the facilities and services, or to the bus stop that provides transport to facilities and services, is not a "suitable access pathway" within the meaning of cl 26 of the SEPP HSPD. In accordance with cl 26(1), development consent cannot be granted in the absence of satisfaction that access complies with cl 26(2).

The requirement for a suitable access pathway

Whether the facilities and services referred to in cl 26(1) are within a distance of 400m from the site, or whether there is a public transport service available within a distance of 400m from the site that provides access to those facilities and services, in either circumstances the distance needs to be accessible "by means of a suitable access pathway". As set out in cl 26(4)(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".
The footpath between the site and Old South Head Road, on the southern side of Beaumont Street, is largely comprised of concrete beds and concrete driveway crossovers. The beds have lifted in some areas so that there are hazards for a wheelchair to move from one bed to the next or from the footpath to the driveway crossover. As surveyed, the path of travel has an average gradient of less than 1:14 when averaged across the entire length of the footpath from the site to Old South Head Road (total 360m). However, there is a portion of the footpath near the site that has a gradient approaching 1:9, with a 120m continuous incline of 1:11 to 1:9. In addition, the footpath adjoining numbers 51 to 47 Beaumont Street presents up to 11% or 1:9 cross-fall.
Based on the evidence of Mr Relf, I consider that the footpath does not meet the definition of a suitable access pathway, as the cross-fall and gradients cause it to not be "suitable for access by means of an electric wheelchair". I accept Mr Relf's opinion that the continuous average slope of 1:9.5 for 120-130 metres with sections of a 1:9 crossfall pose a significant risk to people using electric wheelchairs and motorised scooters during a descent, and will cause fatigue during an ascent. The crossfall is contrary to the standards in the AS 1428.1-2009 Design for Access and Mobility - General Requirements for Access - New Building Work. Whilst the AS 1428.1-2009 does not strictly apply to the public footpath, in setting standards for accessibility in new building work it is informative as to whether the footpath crossfall is suitable for access and mobility.
I do not accept Pertama's submission that Mr Relf's ability to traverse the footpath on the day of the site inspection is sufficient evidence that it is a suitable access pathway. Mr Relf took some time to traverse the footpath, with a number of stops, and is an experienced user of an electric wheelchair. As such, he is well placed to opine on the general suitability of the pathway for access by means of an electric wheelchair, and I accept his opinion that the fact that he was able to traverse it on the day of the site inspection does not mean that there is general suitability for users of electric wheelchairs.
In addition, the gradients do not comply with the requirements for steeper sections of the footpath, as expressed in cl 26(2) and 26(3), which state that gradients of no more than 1:12 for a maximum of 15m at a time, and no more than 1:10 for a maximum length of 5m at a time, are acceptable. I accept the Council's submission that, whilst the wording of cl 26(3) (and cl 26(2)(a)) is not as clear as it could be, the requirements for the pathway gradients are cumulative and gradients that do not comply with (i), (ii) or (iii) are not acceptable even if there is an overall average gradient of no more than 1:14. This is consistent with the decision of Commissioner Bish in Malton Road Development Pty Ltd v Hornsby Shire Council [2018] NSWLEC 1265. Even if I am wrong on this point, I would still consider that there is non-compliance with cl 26 on the basis of the pathway not meeting the definition of "suitable access pathway" for the reasons expressed above.
For these reasons, I am not satisfied that residents of the proposed development will have access that complies with cl 26(2) of the SEPP HSPD. Clause 26(1) therefore precludes me from granting development consent.
Given my findings thus far with respect to cl 26, I need not make a determination with respect to whether there is compliance with the distance requirement within the same clause, that is, whether the facilities and services referred to in cl 26(1) are located at a distance of not more than 400m from the site, or whether they can be accessed by a public transport services within 400m of the site. Contrary to the submission made by Pertama, the measurement of distance for the purpose of cl 26 of the SEPP HSPD, is required to be measured in accordance with the "nearest route ordinarily used in travelling" pursuant to s 38(a) of the Interpretation Act 1987. It is agreed that the shops and services on Old South Head Road within the 400m path of travel do not meet the full range of facilities and services required by cl 26(1) of the SEPP HSPD. The question then would be whether the bus stops on both sides of Old South Head Road meet the requirements in cl 26(2)(b)(i) in circumstances where safe travel to the bus stop on the north side of the road (for a return service that complies with subcl (2)(b)(iii)) requires walking an additional distance to cross the road at a controlled pedestrian crossing, which results in a total travel distance above 400m. However, I need not make a finding on this point given that I have already determined that the requirements of cl 26(2)(b) are not met as a result of the pathway not being a "suitable access pathway" and not complying with the requisite gradients.

The clause 4.6 request is not adequate

However, cl 4.6 of the WLEP applies such that development consent can be granted notwithstanding the non-compliance with cl 26 of the SEPP HSPD. In advancing its position in support of the proposed development, Pertama relies on a request lodged pursuant to cl 4.6 of the WLEP concerning both the distance and gradient requirements of cl 26 of the SEPP HSPD. I also consider this request with respect to the requirement for the pathway to be a "suitable access pathway". The request is dated 31 August 2021.
I am not satisfied that the request has adequately demonstrated that compliance with cl 26 is unreasonable or unnecessary, as required by cl 4.6(3)(a) and 4.6(4)(a)(i) of the WLEP. The request seeks to advance that compliance is unreasonable or unnecessary on the basis that the proposed development achieves the objectives of the standard and the zone notwithstanding the non-compliance, there are no impacts occasioned by the non-compliance and important "planning goals are achieved by the approval of the variation". In support of these propositions, the request states that: "… the proposal will provide Rose Bay with a much needed seniors housing facility. The proposal will provide the opportunity for local residents to age in place and remain connected to their wider community while also contributing to the housing stock available in the Waverley LGA."
The request relies upon the objective of Chapter 3, and the underlying objective of cl 23 as discerned by the Court in Armada Avalon Pty Ltd v Northern Beaches Council [2021] NSWLEC 1490 (Armada Avalon) at [47], which is: "to ensure that sites developed for the purpose of housing seniors and people with a disability are in a location where residents are not required to travel excessive distances to a public transport services where that service is required to access the facilities set out at cl 26(1)".
The objective of Chapter 3 is contained in cl 14 (above at [16]), and describes the purpose of the housing as being "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". The request states that the objectives are met as the proposal "provides 10 independent self-care living units for seniors who are independent, mobile and active".
I accept that the objective of cl 23 is articulated through cl 14, and in the decision of the Court in Armada Avalon. However, I do not accept that the provision of self-care units for seniors who are independent, mobile and active meet the objectives of Chapter 3 as contained in cl 14, or the underlying objectives of the requirements of cl 23. To the contrary, the steep gradients and the lack of a suitable access pathway means that the development will not meet the purpose of providing housing for "those who are frail, and other people with a disability". I accept the evidence of Mr Relf that the site will not be suitable for ageing in place, as those who are new to using an electric wheelchair or other assisted equipment as they age will not have the confidence to traverse the footpath and it will not be safe for them to do so. As such, I do not accept that there is no impact occasioned by the non-compliance with the footpath gradients or by reason of the footpath not being a "suitable access pathway" and I am not satisfied that there are any planning goals that render compliance unreasonable or unnecessary.
Similarly, I do not accept that any of the reasons advanced in the request as justifying the departure from cl 26 are adequate environmental planning grounds to justify the non-compliance.
The reasons advanced as environmental planning grounds rely on the proposed development being for individual living units, with residents that would retain a level of independence and would use private vehicles to access the relevant facilities and services, or use online services. It states that residents who considered that the access was not suitable would not purchase an apartment. It then relies on studies that the gradient provisions in cl 26 present limitations based on 'fatigue' rather than on the design of motorised scooters or wheelchairs, which are tested for use and stability for gradients up to 1:6. The request then relies upon there being 'respite along the way' and the general benefits of the proposed development.
None of these matters are sufficient to justify a departure from the requirements of cl 26 concerning gradients and a suitable access pathway. Reliance on private vehicles is not an environmental planning ground, and it does not justify a departure from a standard that concerns providing accessible paths of travel to facilities and services for those who are frail, those with a disability, and those who need continued access to the same as they age in place and lose the benefit of private vehicle usage. It is unreasonable to expect that seniors living housing in the form proposed should be restricted to those who are mobile. Further, the expectation that online services are available is not sufficient, and none of the stated benefits of the proposed development that are articulated in the request justify the departure from the requirement to provide a safe pathway of access to facilities and services. Whilst there are places of respite on Old South Head Road, there are no places of respite where the steepest gradients are located, and any places of respite will not mitigate a safety risk that presents to someone descending the footpath in an electric wheelchair.
For those reasons, I do not accept that the request adequately addresses that compliance with the development standards in cl 23 concerning gradient and the suitable access pathway is unreasonable or unnecessary, or that there are sufficient environmental planning grounds to justify contravening the requirements for the gradients and the suitable access pathway. As such, the requirements of cl 4.6(3) and cl 4.6(4)(a) of the WLEP are not met.

Conditions of consent inadequate to provide certainty of suitable access pathway

Pertama seeks to satisfy the requirement for a suitable access pathway by reliance on the following conditions of development consent: "Along the southern side of Beaumont Street: (a) For the section between 53 Beaumont Street to the intersection of Beaumont Street and Old South Head Road, the Applicant shall level out and remove any misalignment between footpath panels where there is a height difference exceeding 10mm; (b) For the section between, and including the frontage of, 45 Beaumont Street to 51 Beaumont Street, where the footpath has a crossfall resulting in a negative camber, the Applicant shall reduce the degree of crossfall to a gradient of 1:40; and (c) The Applicant shall construct public seating in front of 45 Beaumont Street."
Whilst the requirement to "level out and remove any misalignment between footpath panels" will remove the hazards associated with differences in the levels, the conditions of consent with respect to dealing with the crossfall do not provide sufficient certainty that the outcome will be satisfactory. There are no plans that are presented on how this will be achieved and what the resulting fall of the footpath will be, whether there will be a step that results between the concrete footpath and the grass verge, and whether any crossfall will remain that is outside the scope of the condition. There is no evidence that these conditions will resolve the safety issues identified by Mr Relf, and upon whose evidence I consider that the pathway will not meet the description of a "suitable access pathway".
In accordance with cl 26(1), development consent cannot be granted in the absence of satisfaction that access complies with cl 26(2). Further, the absence of a pathway that can be safely traversed by seniors and those with a disability is also a reason why the site is not suitable for seniors living, in accordance with a merit assessment under s 4.15(1)(c) of the EPA Act.

The failure to provide communal open space is unsatisfactory

Both the SLP Urban Design Guidelines and the ADG emphasise the importance of providing communal open space.
Section 5 of the SLP Urban Design Guidelines concerns internal site amenity, and its first objective is to "provide quality useable private and communal open spaces for all residents". It then provides the following design principles concerning communal open space: "○ Provide communal open space that: - is clearly and easily accessible to all residents and easy to maintain - incorporates existing mature trees and vegetation to provide additional amenity for all residents - includes shared facilities such as seating areas and barbecues to permit resident interaction"
The ADG highlights the importance of communal open space and provides the following objective, design criteria and design guidance, at Objective 3D-1: "Objective 3D-1 An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping Design criteria 1. Communal open space has a minimum area equal to 25% of the site (see figure 3D.3) 2. Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid winter) Design guidance Communal open space should be consolidated into a well designed, easily identified and usable area Communal open space should have a minimum dimension of 3m, and larger developments should consider greater dimensions Communal open space should be co-located with deep soil areas Direct, equitable access should be provided to communal open space areas from common circulation areas, entries and lobbies Where communal open space cannot be provided at ground level, it should be provided on a podium or roof Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should: • provide communal spaces elsewhere such as a landscaped roof top terrace or a common room • provide larger balconies or increased private open space for apartments • demonstrate good proximity to public open space and facilities and/or provide contributions to public open space"
I do not accept evidence of Mr Moutrie that communal open space is not likely to be utilised and that the better outcome is to maximise private open space. I do not accept his view that the SLP Urban Design Guidelines do not require the provision of communal open space.
To the contrary, Chapter 5 of the SLP Urban Design Guidelines clearly have a stated objective for the provision of communal open space, and include design guidelines. This includes incorporating shared facilities to permit resident interaction. As such, I do not accept the evidence of Mr Moutrie that it is sufficient to maximise private open space and I instead prefer the evidence of Mr Relf that communal open space should be provided to promote interaction and prevent the isolation of residents as they age in place and as their mobility decreases.
Accordingly, I consider it unacceptable that the proposed development has not included communal open space.

The development application should be refused

As set out above, the scale of the proposed development is unacceptable and that, alone, is a sufficient basis upon which to refuse the development application. Whilst I find that the FSR development standard is not set aside by an inconsistency with the SEPP HSPD, in the circumstances of my findings on excessive scale, I need not determine whether the Court is bound by cl 4.6(4) in considering the breach of the FSR development standard, or whether there is a breach of the maximum storey development standard in cl 40(4)(b) of the SEPP HSPD.
In addition, I am not satisfied that residents of the proposed development will have access that complies with cl 26(2) of the SEPP HSPD, as there is not a "suitable access pathway" to the requisite facilities and services (or to the public transport services that provide access to facilities and services). I consider that the cl 4.6 request, lodged pursuant to cl 4.6 of the WLEP, does not adequately address the matters required to be demonstrated by cl 4.6(4)(a)(i), and that the proposed conditions of consent do not provide adequate certainty that a suitable access pathway will be provided. Clause 26(1) of the SEPP HSPD therefore precludes me from granting development consent, and there is similarly no power pursuant to cl 4.6(4) of the WLEP to grant consent notwithstanding the non-compliance.
Further, I consider that the failure to provide communal open space is unacceptable.
For those reasons, the development application should be refused. There is no need to consider the remaining contentions raised by the Council, including landscaping, overshadowing and the adequacy of the proposed stormwater management system.
The Court orders that: 1. The appeal is dismissed. 2. The development application DA-9/2021 for the demolition of three dwelling houses and construction of a 3-storey seniors housing development incorporating 10 self-contained apartments, basement car parking and landscaping, at 53-57 Beaumont Street, Rose Bay, is refused. 3. The exhibits are returned, except for Exhibits A, J and 3. ………………………... J Gray Commissioner of the Court

Amendments 22 December 2021 - Amended "s 39(a)" to "s 38(a)" at par [54]. 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: 22 December 2021

The planning context

The site is zoned R2 Low Density Residential pursuant to the Waverley Local Environmental Plan 2012 ("WLEP"). Seniors housing is a nominated permissible use in the zone. The objectives of the zone, to which regard must be had, are as follows: • 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. • To maximise public transport patronage and encourage walking and cycling.
The SEPP HSPD applies to the proposed development. I note that on 26 November 2021 (after the conclusion of the hearing), the State Environmental Planning Policy (Housing) 2021 commenced, which repeals the SEPP HSPD. However, Sch 7 of the State Environmental Planning Policy (Housing) 2021 contains savings provisions, the effect of which is that the provisions of the SEPP HSPD continue to apply to the development application.
Clause 15 of the SEPP HSPD provides 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 (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.
The Chapter therefore allows "any form of seniors housing" on the site, "if the development is carried out in accordance with this Policy".
The aims of the SEPP HSPD are as follows: 2 Aims of Policy (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.
Clause 14 also sets out objectives for Ch 3 of the SEPP HSPD, which contains cl 15 above as well as the site related requirements for seniors living developments. Clause 14 provides: 14 Objective of Chapter 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.
One of the site related requirements is for access to facilities and services and is set out in cl 26, which provides: 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 - (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is 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, or (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 (c) in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area) - there is a 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 during daylight hours at least once 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 transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (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 (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause - bank service provider means any bank, credit union or building society or any post office that provides banking services.
Clause 29(2) applies to the proposed development and requires the Court, in exercising the functions of the consent authority, to "take into consideration the criteria referred to in cl 25(5)(b) (i), (iii) and (v)". Clause 25(5)(b) (i), (iii) and (v) provide the following: (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,
Although a site compatibility certificate is not required for the proposed development, these criteria must be taken into consideration.
Clause 31 of the SEPP HSPD also requires a consent authority, in determining a development application made pursuant to Ch 3, to take 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".
The SLP Urban Design Guidelines contains five sections, which the guidelines state "each corresponding to a key issue when designing development under the Seniors Living policy". The first is titled "Responding to context" and concerns achieving a good "neighbourhood fit" by appreciating the "defining characteristics of the neighbourhood that new development could retain or reinforce". The second section is titled "Site Planning and Design" and sets design principles for the built form, landscaping, and car parking. The third section concerns the impacts on streetscape and sets design principles for the built form, including for breaking up building massing. The fourth section concerns impacts on neighbours, and the fifth section concerns internal amenity.
Clause 32 of the SEPP HSPD prevents consent from being granted unless the proposed development demonstrates that adequate regard has been given to the principles set out in Div 2. Clause 32 provides as follows: 32 Design of residential development A consent authority must not consent to a development application made pursuant to this Chapter 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.
The relevant design principles are contained in cll 33-39. The principles relevant to the matters in dispute in these proceedings are cll 33, 35, 36 and 38, as follows: 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. 36 Stormwater The proposed development should - (a) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas, and (b) include, where practical, on-site stormwater detention or re-use for second quality water uses. 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.
In addition, cl 40 of the SEPP HSPD sets out a number of development standards that apply to the proposed development, as follows: 40 Development standards - minimum sizes and building height (1) General A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause. (2) Site size The size of the site must be at least 1,000 square metres. (3) Site frontage The site frontage must be at least 20 metres wide measured at the building line. (4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and (c) a building located in the rear 25% area of the site must not exceed 1 storey in height. (5) Development applications to which clause does not apply Subclauses (2), (3) and (4) (c) do not apply to a development application made by any of the following: (a) the Department of Housing, (b) any other social housing provider.
Both the requirements of cl 26 of the SEPP HSPD, concerning location and access to facilities, and those in cl 40(4) concerning height in zones in which residential flat buildings are not permitted, are development standards (see Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153 and Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205).
Clause 4.6 of the WLEP precludes development consent from being granted where there is a breach of a development standard unless certain matters are satisfied. It provides as follows: 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 Planning 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 Planning Secretary before granting concurrence.
Clause 50 of the SEPP HSPD sets out a number of standards that, if met, cannot be used as a basis upon which to refuse development consent for self-contained dwellings. 50 Standards that cannot be used to refuse development consent for self-contained dwellings A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds - (a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys), (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, (c) landscaped area: if - (i) in the case of a development application made by a social housing provider - a minimum 35 square metres of landscaped area per dwelling is provided, or (ii) in any other case - a minimum of 30% of the area of the site is to be landscaped, (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, (e) solar access: if living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (f) private open space for in-fill self-care housing: if - (i) in the case of a single storey dwelling or a dwelling that is located, wholly or in part, on the ground floor of a multi-storey building, not less than 15 square metres of private open space per dwelling is provided and, of this open space, one area is not less than 3 metres wide and 3 metres long and is accessible from a living area located on the ground floor, and (ii) in the case of any other dwelling, there is a balcony with an area of not less than 10 square metres (or 6 square metres for a 1 bedroom dwelling), that is not less than 2 metres in either length or depth and that is accessible from a living area, Note - The open space needs to be accessible only by a continuous accessible path of travel (within the meaning of AS 1428.1) if the dwelling itself is an accessible one. See Division 4 of Part 4. (g) (Repealed) (h) parking: if at least the following is provided - (i) 0.5 car spaces for each bedroom where the development application is made by a person other than a social housing provider, or (ii) 1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, a social housing provider.
It is agreed that the proposed development complies with the standards in cl 50(a), (d), (e), (f) and (h) but there is dispute with respect to whether there is compliance with the landscaped area. The proposed development does not comply with cl 50(b).
As the seniors living is in-fill self-care housing in the form of a residential flat building, SEPP 65 applies. It provides at cl 28(2) that: (2) In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide.
Clause 30(2) of SEPP 65 provides: (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria."
The design quality principles and the Apartment Design Guide ("ADG") is therefore relevant in the context of cll 28 and 30.
Pursuant to the WLEP, the applicable floor space ratio ("FSR") development standard that applies to the site is 0.5:1. Although this FSR standard is identical to the "must not refuse" criteria in cl 50(b) of the SEPP HSPD, Pertama says there is an inconsistency that arises between the two provisions. In the event of there being such an inconsistency, the SEPP HSPD prevails as cl 5(3) states as follows: (3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.
This is re-iterated by s 3.28 of the EPA Act, which provides: 3.28 Inconsistency between instruments (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy … (emphasis added)
The Waverley Development Control Plan 2012 (Amendment No 9) ("WDCP") also applies to the proposed development.

(2016) 222 LGERA 212

(2001) 116 LGERA 319

Pertama Development Pty Ltd v Waverley Council

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Judgment (10 paragraphs)

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Cases Cited (14)