Principal Healthcare Finance Pty Limited v Blacktown City Council

Land and Environment Court (NSW)|2021-03-25

The applicant's submissions

It is the applicant's case that the provisions in the Seniors Housing SEPP are not relevant to the determination of this appeal. The application is for a residential care facility, as defined under the Growth Centres SEPP, which is a permissible form of development in the R2 zone. The Seniors Housing SEPP applies to the land and development consent for seniors housing could be granted pursuant to the Seniors Housing SEPP, however, in the circumstances of this appeal, the application can either be made under the Blacktown Precinct Plan or under Chapter 3 of the SEPP Seniors Housing. The applicant elected to make the application under the Blacktown Precinct Plan.
The applicant can elect which instrument it will proceed under and this is made clear by a long line of authority (Mete v Warringah Council (2004) 133 LGERA 420; [2004] NSWLEC 273). The question of whether the application is then assessed under the instruments depends upon the construction of those instruments.
As is apparent from the aims of the Seniors Housing SEPP, it seeks to increase the supply and diversity of residences that meet the needs of seniors or people with a disability. It does that by setting aside local planning controls that would prevent the development of housing for seniors or people with a disability (see cl 2). As a result, in those circumstances where seniors housing is prohibited under a LEP (or a Precinct Plan), the Seniors Housing SEPP allows that development to be carried out (in accordance with the provisions of the Seniors Housing SEPP) and prevails to the extent of the obvious inconsistency. That is not the circumstance in this case. There is no such obvious, or general, inconsistency.

The Council's submissions

The Council disagrees with the applicant's submissions regarding the application of the Seniors Housing SEPP, on the following bases:

Clause 4(1) of the Seniors Housing SEPP states that this policy applies to land within NSW that is zoned primarily for urban purposes. The subject site is zoned primarily for urban purposes and as per cl 4(1), the Seniors Housing SEPP applies to this land. Therefore, the development standards and requirements in this policy are relevant to the assessment of this application.
Whilst Chapter 3 of the Seniors Housing SEPP provides a provision for senior housing development to be permissible if the development is carried out in accordance with the SEPP, it does not negate the need for senior housing development to meet the development standards under the SEPP if they are permissible under any other instrument.

If an EPI applies to the land in question, and that EPI applies to the particular type of development sought by an applicant for consent, that EPI is required by the EPA Act to be taken into consideration by the consent authority in the assessment of the development application for which development consent is sought, pursuant to s 4.15 EPA Act.
Whilst there may be more than one operative EPI that creates a path for approval in respect of the land and the development in question, there is nothing in the statutory scheme of the EPA Act and Regulations that means, as a matter of law, an applicant for consent can 'elect' which particular EPI it seeks the DA to be determined under, to the exclusion of other EPIs that, firstly apply to the land and secondly, apply to the development. If an applicant does so elect, they run the risk of any appeal being dismissed for want of consideration of other EPIs that must be considered. If the particular development requires a dispensation with a development standard which is not made, any Class 1 appeal has to be dismissed. This is exactly what occurred in UPG.
The statement in the Statement of Environmental Effects that the applicant is making the application under a particular planning instrument as in this case, is informative but does not have the legal consequence the applicant argues. Development applications are made under an enactment, the EPA Act, not subordinate legislation being an EPI. That is clear from s 4.12 of the EPA Act and Div 1 of the Environmental Planning and Assessment Regulation 2000 (the Regulations). The use of the wording "a DA made pursuant to this Chapter" in the Seniors Housing SEPP does not alter that construction. A statutory instrument such as an EPI does not rise higher than its source. Development applications are made pursuant to the statutory authority and power to approve them under the EPA Act. It is a mandatory requirement under s 4.15 of the EPA Act that 'in determining a DA, a consent authority is to take into consideration… the provisions of any EPI… that is of relevance to the development the subject of the DA… that apply to the land to which the DA relates': s 4.15(1)(a)(i). It is accepted that both the Seniors Housing SEPP and the Growth Centres SEPP apply to the land and the development the subject of the application.
The planning scheme for seniors housing across the State is quite clearly intended to invoke the development standards set out in the Seniors Housing SEPP which provides the necessary detail for the assessment and determination of a proposed development for seniors housing despite the fact that permissibility for such a development is also available as in this case by a more localised EPI.
The EPA Act and the Regulations do not speak in the language of 'electing' that a certain EPI and only that EPI applies to an application in respect of land. The fact that there may be more than one pathway for approval over a piece of land does not mean that other relevant EPIs that apply to the proposed development and apply to the land the subject of the proposed development can be simply ignored.
The words, "this Chapter" throughout Chapter 3 of the Seniors Housing SEPP are there to ensure that for the avoidance of doubt, the provisions of Chapter 3 apply to seniors housing development as defined in cl 10. To limit applications that fall to be considered under the Seniors Housing SEPP to only those applications made pursuant to Chapter 3 would act as an impermissible fetter on the application of s 4.15 of the EPA Act and be contrary to the principles of statutory construction.
There is no provision under the EPA Act or the Regulations that permits an applicant to 'elect' to rely on one EPI to the exclusion of another that apples to the land and applies to the application. The Court's decision in Mete is distinguished on its facts. The application in that matter was made before the gazettal of an earlier version of the Seniors Housing SEPP, therefore it could not be said that the application was made pursuant to the SEPP, see [33]. The process of construction starts with the Act, not with the EPI and an application is made pursuant to the EPA Act.
The applicant cannot avoid the application of the Seniors Housing SEPP to the application, including the development standards under cll 26 and 40, because it is required under the EPA Act. To determine otherwise would be contrary to the reasoning and findings of the Court of Appeal in UPG.

The applicant's submissions in reply

The Council does not advance any argument that the application contravenes the Growth Centres SEPP.
The Council's submission that an applicant cannot elect under which instrument to make the application is contrary to authority (Mete at 420 and 421 and Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274; [2008] NSWLEC 180 (Hastings Point Progress Association) at [48]).
The applicant does not say that once the election is made, it is necessarily made to the exclusion of another, potentially relevant instrument. The question of whether the other instrument becomes relevant depends upon the construction of the instruments. There is nothing in the language of the Growth Centres SEPP or the Seniors Housing SEPP that makes the Seniors Housing SEPP relevant.

Findings

The proposal is for an aged care facility within the meaning of seniors housing in the Growth Centres SEPP and seniors housing is a nominate permissible use in the Land Use Table for land zoned R2 under the Growth Centres SEPP. The applicant elected to make the application pursuant to the Growth Centres SEPP (Ex A, tab 4, Statement of Environmental Effects dated October 2019 Section 4.1). An applicant may elect under which environmental planning instrument (EPI) an application is made (Mete at [28] and applied in Hastings Point Progress Association).
The Seniors Housing SEPP applies to the site, at cl 4(1), because the site is zoned primarily for urban purposes. This provision permitted the applicant to nominate that the application was made under the Seniors Housing SEPP. The applicant did not do so and instead opted to make the application under the Growth Centres SEPP, because the proposed development is permissible under the Blacktown Precinct Plan.

The operation of the Seniors Housing SEPP

I accept the applicant's submission that the question of whether a proposal for seniors housing made under another EPI is to be assessed under the Seniors Housing SEPP is a matter of construing the operation of the SEPP. Importantly, there is no provision in the Seniors Housing SEPP that applies any part of the SEPP to all development for the purpose of seniors housing. This is in contrast to other SEPPs, which operate to apply the SEPP both to particular land and to particular development; see, for example, State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
The omission of a provision in the Seniors Housing SEPP applying the SEPP, or parts of the SEPP, to all development for seniors housing is intentional and this is demonstrated by comparing the operation of the Seniors Housing SEPP to other SEPPs which operate to apply certain provisions of those SEPPs to particular development regardless of which EPI an application is made under. It is reasonable to compare the operation of SEPPs because all the SEPPs emanate from a single legislative authority and are intended to operate concurrently. It is clear from the operation of the Seniors Housing SEPP that the legislative authority intended that the SEPP achieve the aim of encouraging the provision of housing for seniors and people with a disability by setting aside local planning controls that would otherwise prevent such development on certain land, at cll 2(1)(a) and 2(2)(a).
The aims of the Seniors Housing SEPP, at cl 2(1), are to encourage the provision of housing (including residential care facilities) that will increase the supply and diversity of residences that meet the needs of seniors and people with a disability; make efficient use of infrastructure and services; and be of good design. The aims of the Seniors Housing SEPP will be achieved, at cl 2(2), by setting aside local planning controls; setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form; and ensure that applicant provide support services for development on land adjoining land zoned primarily for urban purposes. These goals are focused on the overall aim of encouraging the provision of suitable housing for the cohort.
In other words, the purpose of the policy informing the Seniors Housing SEPP is to overcome a prohibition for seniors housing in the Land Use Table of an applicable EPI in order to increase the availability of land that can be developed for seniors housing, as a means to augmenting the provision, by the private sector, of suitable housing for seniors and people with a disability in New South Wales. It is not an aim of the Seniors Housing SEPP, at cl 2, to dictate development standards or requirements for all seniors housing development the subject of applications made under other EPIs. The references to "good design" (cl 2(1)(c)) and "design principles that should be followed to achieve built form that responds to the characteristics of its site and form" (cl 2(2)(b)) are in relation to the aim to encourage the provision of housing that is appropriate for use by the cohort and responds to the characteristics of the site. The reference to "good design" is not a goal for seniors housing per se.

The operation of SEPP 65 and SEPP ARH

SEPP 65 applies to the whole of the State at cl 5(1); and applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component, if the development consists of any one of the criteria under cl 4(1)(a). An application for residential accommodation that is caught by cl 4(1) of SEPP 65 must also be permissible in the Land Use Table of another applicable EPI. In this way, SEPP 65 provides an additional layer of requirements for certain development in addition to those in the applicable LEP (or alternate EPI) under which the application is made, because the development must first be permissible in the Land Use Table of the applicable LEP. For SEPP 65 to be engaged, it must apply to both the site at cl 5(1) and to the particular development, at cl 4(1)(a). Because SEPP 65 applies to the particular development at cl 4(1), the applicant cannot nominate to make the application under the applicable LEP only.
SEPP ARH applies to the whole of the State, at cl 7, and applies divisions within the SEPP to land in particular zones and to particular development; see, for example, cl 10 of SEPP ARH, which applies Div 1 of Pt 2 to development for the purpose of in-fill affordable housing. In-fill affordable housing includes certain residential development permitted with consent under another EPI that meets all of the criteria for the land and the development under cl 10. An application for in-fill affordable housing that is caught by cl 10(1) of SEPP ARH must also be permissible in the Land Use Table of the applicable LEP. In the same way as SEPP 65, Div 1 of Pt 2 of SEPP ARH provides an added layer of requirements for certain development in addition to those in the applicable LEP (or alternate EPI) under which the application is made, because the development must first be permissible in the Land Use Table of the applicable LEP. Clauses 20 and 21 of SEPP ARH apply Div 2 of Pt 2 to land in residential zones where a dwelling house is a permissible use (cl 20) and to development for the purposes of a secondary dwelling and ancillary development within the meaning of Sch 1 (cl 21). Clauses 26 and 27 of SEPP ARH apply Div 3 of Pt 2 to land in residential and some business zones (cl 26 as qualified by cl 27(2) and (3)) and to development for the purpose of boarding houses (cl 27). Because SEPP ARH applies to particular development, for example at cll 21 and 27, the applicant cannot nominate to make the application under the applicable LEP only.

The Seniors Housing SEPP does not apply the SEPP to all development for the purpose of seniors housing or housing for people with a disability

The Seniors Housing SEPP applies to certain land within the State (cll 4, 4A and 4B), which permits an application to made for seniors housing under the Seniors Housing SEPP on that land. However, applying the Seniors Housing SEPP to that land does not mandate that the SEPP applies to all development for the purpose of seniors housing on that land, because there is no provision that applies the Seniors Housing SEPP, or parts of the SEPP, to particular development.
Chapter 3 of the Seniors Housing SEPP, "Development for seniors housing" explains what Chapter 3 does, at cl 15: 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…
The purpose of the policy in the Seniors Housing SEPP is to make certain development on certain land permissible under the SEPP where it is not permissible under the applicable LEP (or alternate EPI). The Seniors Housing SEPP permits an application to be made for seniors housing for development that is not otherwise permissible under the Land Use Table of the applicable LEP, as a means of achieving the aims of the Seniors Housing SEPP, at cl 2(2)(a). This is because SEPP Seniors Housing, unlike SEPP 65 and SEPP ARH, does not operate to require a development for the purpose of seniors housing to be permissible under another EPI. This is deliberate in the drafting of the instrument.
Section 4.15(1)(a)(i) of the EPA Act is in the following terms: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument … that apply to the land to which the development application relates
Although s 4.15(1)(a)(i) of the EPA Act applies any EPI that applies to the land to which the application relates as a matter for consideration in determining an application, the question is whether the EPI is an EPI that is of relevance to the development the subject of the application. A consent authority is to take into consideration only the matters listed that are of relevance to the development the subject of the application, at s 4.15(1). A provision in a SEPP applying the SEPP to the land on which the development is to be located does not in of itself make the SEPP of relevance to the development the subject of the application. In some SEPPs, the application of the SEPP to the land permits an application to be made under that SEPP where the proposed development would otherwise not be permissible under another EPI; this is the case for the Seniors Housing SEPP. If an application for seniors housing is made under the Seniors Housing SEPP, the engaged provisions of the SEPP are of relevance to the development the subject of the application. Many SEPPs apply to the whole State and their application to land is not sufficient to engage the SEPP as a matter for consideration in determining an application for land within the State, unless the SEPP also applies to the proposed development in some way. Other SEPPs apply to specific land and an application has to be made under that SEPP, or the SEPP provides requirements in addition to the EPI under which the application is made for development on the identified land. See, for example:

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the whole of the State, at cl 5 and requires the consent authority to consider whether the land is contaminated, at sub-cl 7(1). SEPP 55 is engaged for all applications in the State because the consent authority is required to consider whether the land the subject of an application is contaminated; it is not, however, engaged for all applications by the operation of cl 5 alone.
State Environmental Planning Policy No 33 - Hazardous and Offensive Development (SEPP 33) applies to the whole of the State at cl 5 and to development identified by cl 11. SEPP No 33 is only a matter for consideration when it applies both to the land at cl 5 and to the proposed development at cl 11. SEPP 33 is not a matter for consideration in determining an application for proposed development other than for proposed development to which the policy applies at cl 11.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the whole of the State and Lord Howe Island, at cl 5 and applies to certain development, being BASIX affected or optional development, at cl 6. SEPP BASIX is not a matter for consideration in determining an application for proposed development other than proposed development to which the policy applies at cl 6.
State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coastal Management) applies to land within the coastal zone, at cl 5, as defined by the Coastal Management Act 2016 and cl 6. SEPP Coastal Management provides development controls in addition to the requirements of the EPI under which an application is made, for land within the coastal zone and declares certain development to be designated development (sub-cl 10(2)).
State Environmental Planning Policy (Gosford City Centre) 2018 applies only to land in the Gosford city centre as identified by the applicable map, at cl 1.3 and repeals all other LEPs applying to that land (sub-cl 1.8(1)), so that an application for the land to which the SEPP applies has to be made under the SEPP.

In Mete, Talbot J held (in addition to finding that an applicant can elect to apply for consent pursuant to the provisions of one concurrently operating EPI) that the State Environmental Planning Policy (Seniors Living) 2004 was a relevant consideration for the consent authority pursuant to cl 12(1)(b) of the Warringah Local Environmental Plan 2000. Clause 12(1)(b) of the LEP required the consent authority to be satisfied that the proposed development was consistent with any relevant SEPP described in a schedule to the LEP, which included State Environmental Planning Policy (Seniors Living) 2004 (at [31]). His Honour did not, in my opinion, make a separate conclusive finding at [31] that the consent authority was to take into consideration the provisions of the SEPP on the basis of s 79C(1)(a) of the EPA Act (now s 4.15(1)(a)(i) of the EPA Act) because the SEPP applied to the land on which the development was proposed. Although Talbot J eluded to this finding at [31], it was overtaken by the requirement for the consent authority to have regard to the SEPP under the terms of the LEP.
In this case, there is no requirement under the Growth Centres SEPP to consider the provisions of the Seniors Housing SEPP and so the same issue does not arise.
The Seniors Housing SEPP, as noted by Talbot J in Mete at 427 (regarding the earlier iteration of the SEPP), includes numerous references to "a development application made pursuant to this Chapter". The language of the Seniors Housing SEPP makes it clear in these operative provisions that the provisions apply only to an application made pursuant to the SEPP.
The language of the Seniors Housing SEPP makes it clear, in the chapeau of each of the operative provisions and standards, that the provision applies only to a development application made under the SEPP (see cll 17, 18(1), 21, 23(1), 24(1), 26(1), 27(1), 28(1), 29(1), 30(1), 31, 32, 40(1), 41(1), 42(1), 43(1), 46(1), 47, 48(1), 49 and 50).
The Seniors Housing SEPP specifically applies the SEPP to applications made under the Seniors Housing SEPP and not to development for the purpose of seniors housing. Clause 26(1) of the Seniors Housing SEPP applies the development standard under cl 26 "to a development application made pursuant to this Chapter [Chapter 3 Development for Seniors Housing]". Clause 40(1) of SEPP Seniors Housing applies the development standards for minimum sizes and building height under cl 40 to "a development application made pursuant to this chapter [Chapter 3 Development for Seniors Housing]". The Seniors Housing SEPP is not engaged by the application and the development standards under cll 26 and 40(4)(c) of the Seniors Housing SEPP do not apply to the proposal, because the application is made under the Growth Centres SEPP and because there is no provision in the Seniors Housing SEPP applying the SEPP to the proposed development.
The application has not been made under the Seniors Housing SEPP. As the application is not made pursuant to Chapter 3 of SEPP Seniors Housing, the development standards in cll 26 and 40 do not apply to this proposal. This approach is consistent with the principle of harmonious operation identified by the Court of Appeal in UPG at [13].

Contravention of height of buildings development standard

The proposal has a maximum height of 9.75m pursuant to cl 4.3 of the Blacktown Precinct Plan above existing ground level. The height of buildings development standard for the site is 9m.
The applicant provided an amended written request seeking to justify the contravention of the height of buildings development standard (Ex E). The written request referred to the exceedance of the height of buildings development standard as, "expected to be … up to 9.75m" (Ex E, p 5) and the environmental planning grounds justifying the exceedance of the height of buildings development standard generally promoted the benefits of carrying out the development as a whole and did not specifically focus on the aspect of the proposal that exceeds the 9m height of buildings development standard and the justification for that exceedance. Environmental planning grounds relied upon in a written request to contravene a development standard must be sufficient to justify contravening the development standard and the focus must be on the aspect of the development that contravenes the development standard (cl 4.6(3)(b) of the Blacktown Precinct Plan and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ("Initial Action") at [24]).
During the hearing, the applicant was directed to amend the written request for the exceedance of the height of buildings development standard (Ex E) to remove the phrase, "expected to be…" in relation to the numerical value of the exceedance of the development standard in order to provide a precise numerical value for the exceedance of the 9m height of buildings development standard; and to augment the environmental planning grounds to address the requirement for the environmental planning ground/s to justify the exceedance of the development standard by focusing on the aspect of the development that contravenes the development standard. The applicant filed the amended written request on 26 March 2021.
The consent authority, or the Court exercising the functions of the consent authority, has to be satisfied that the applicant's written request has demonstrated those matters required to be demonstrated by cl 4.6(3) of the Blacktown Precinct Plan (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]). It would be inconsistent with the overriding purpose of the Civil Procedures Act 2005 at sub-s 56(1) to have determined the appeal on this jurisdictional hurdle and not to have provided the applicant with an opportunity to amend the written request, particularly as the amendment of the written request did not result in any change to the proposed development. For this reason, I am satisfied that the amendments requested and made to the written request in Ex E are minor within the meaning of s 8.15(3) of the EPA Act.
The Council's contention (contention 2 of Ex 1) regarding building height focuses on the contravention of cl 40(4)(c) in the Seniors Housing SEPP, although the Council did raise an issue that there are insufficient environmental planning grounds to justify the contravention of the development standard under cl 4.3 of the Blacktown Precinct Plan. The Council's contention regarding insufficient environmental planning grounds to justify the contravention of the height of buildings development standard under cl 4.3 of the Blacktown Precinct Plan is not made out by the evidence before me and I am satisfied that there are sufficient environmental planning grounds to contravene the height of buildings development standard.
The fundamental justification for the contravention of the height of buildings development standard is the requirement to provide an aged care facility with a uniform floor level across the site, and this was omitted from the written request. The site is large, over 1 ha, with a gentle fall of 3.5m across the site to the north. The proposal includes minor excavation of the existing level of the site in the southern part of the site. The level change of the ground level at the southern end of the site is accommodated adjacent to the southern boundary, by providing a retaining wall to retain a deep soil zone 2.54m wide at the existing ground level against the southern boundary (landscape section S 13, Ex F) and the car parking at the southern end of the site is at an excavated level of approximately RL 24.1. The nominated reduced level (RL) of the ground floor is RL 24.25. The 24.25m contour on the existing site is approximately the centre of the site. This is a logical level to nominate for the Ground Floor, because it requires some excavation in the southern part of the site and it results in the Ground Floor level being raised above the existing ground level in the northern part of the site. An aged care facility ideally requires a consistent RL across each level to avoid stairs or lifts (other than to access different levels of the building). Because the Ground Floor is raised above the existing ground level in the northern part of the site, the plant room over this part of the two-storey building exceeds the 9m height of buildings development standard.
The requirement for a single RL across each level, on a gently sloping site, for an aged care facility, is an environmental planning ground within the meaning identified by Preston CJ in Initial Action at [23] and I am satisfied that this is an environmental planning ground that is sufficient to justify the contravention of the height of buildings development standard.
I am satisfied, as required by cl 4.6(4)(a)(i) of the Blacktown Precinct Plan, that the applicant's amended written request seeking to justify the contravention of the height of buildings development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, which include the reasons elaborated by the applicant in the original written request (Ex E) and reiterated in the amended written request, including that the exceedance, considered in the context of the scale of the site and the location of the exceedance on the site, is numerically insignificant and the plant room does not result in amenity impacts on adjoining land.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of the Blacktown Precinct Plan (Initial Action at [29]).

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4) of the Blacktown Precinct Plan, for the reasons given by the applicant in the amended written request, as follows:

The proposal provides for the housing needs of the community, particularly the frail and vulnerable members of that community, within a low density residential environment;
The proposal provides for a range of activities that the residents can undertake without impacting on the amenity of neighbouring properties;
The proposal supports the well-being of the community, by enabling a particular form of seniors housing and related activities in a manner that is compatible with the amenity of the low density residential environment.

Merit issues

It was agreed by the planning experts that there is a need for aged care facilities in the locality. I have considered the applicant's Social Impact Assessment (Ex A, tab 19) and I accept its conclusion, in the absence of any contrary evidence, that the proposal will deliver significant social benefits to the local area.

The proposal does not compromise the amenity of future dwellings to the east

The planning experts agreed that the Ground Floor of the proposal ranges from nil to 1.55m above the ground level along the eastern boundary. The terraces are setback 4m from the eastern boundary. The experts agreed that the amended proposal (Ex F) would have an improved relationship with the adjoining property to the east because of the changes to the external terraces on the eastern side of the proposal.
I accept Mr Bridle's evidence that the ability to overlook adjoining residential development to the east from the first floor of the proposal is adequately addressed by the eastern setback, the design and articulation of the eastern façade, the landscaping of the setback and privacy screens and planters along the first floor eastern elevation. I am satisfied that the proposal is compatible with the future development of the adjoining site to the east because the proposal has a two storey form along the eastern side and provides adequate deep soil to allow for substantial landscaping along the eastern side setback. The external louvres to the eastern window of the first floor sitting room in the north-eastern corner and the screening of first floor balconies on the eastern elevation of the proposal will prevent any overlooking of future dwellings and do not compromise the internal amenity of the rooms. The proposal does not dictate the form and location of the future development of the adjoining site to the east.

The proposal is compatible with the low density residential character of the area

The planning experts disagreed on whether the length of the western elevation to Northbourne Drive is excessive and contributes to a design that is not compatible with the low density residential character of the locality.
I accept Mr Brindle's evidence that the two storey western façade of the proposal is articulated and expressed as a number of smaller elements to reflect the scale and form of the residential character of the locality. The proposal is compatible with the immediate context of the site, which is a medium density residential zoning to the north, a school complex to the west and a childcare centre to the south. I am satisfied that the proposal will be legible as an aged care facility and that the two-storey scale with low pitched roofs is compatible with the scale and appearance of the low density residential development in the locality.
The bulk and scale of the proposal are appropriate for an aged care facility in a low density residential zone. It is not possible to read the depth of the building because the roofs are low pitched. An aged care facility (permissible in the zone) is not going to resemble a suburban streetscape of dwellings, just as the school and the childcare centre do not resemble a suburban streetscape of dwellings. This does not make these uses inconsistent with the low density residential character of the locality. The goal is not to camouflage different uses in a locality; it is to ensure that development is compatible and consistent with the desired future character of the locality. Compatibility in an urban design context means capable of existing together in harmony (Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22]). I am satisfied that the proposal's two storey, domestic appearance is in harmony with the buildings or future buildings in its context and that the proposal is consistent with the low density residential character of the zone.
I am satisfied that the proposal is compatible with the character of the local area and will have an acceptable impact on the streetscape as a result of the built form of the proposed development and the landscaping treatment. The extent of hard surfaces, retaining walls and the landscaping along the street frontages is not excessive and there are substantial areas of landscaping along the perimeters of the site, as well as landscaped courtyards within the proposal.
The proposal responds adequately to the topography of the site within the constraint of having a uniform level for each floor. The retaining wall along the northern and eastern boundaries of the site is not excessively high. The Ground Floor raised terraces on the northern and eastern facades in the north-eastern corner of the proposal (landscape sections S 1 and S 8, Ex F) are approximately 1.6m above ground level, which will give the occupant of the room a comfortable sense of separation, safety and privacy from residents walking along the footpath in the eastern setback or the public on the Bolwarra Drive footpath in these locations. The scale of the proposal in the north-eastern corner is not excessive and is ameliorated by the articulation of the form and landscaping.

Parking and traffic safety issues

The provision of visitor car parking within the front setback to Northbourne Drive is an appropriate location for onsite parking. The parking is located between the aged care building and the adjoining site containing the childcare centre. The carpark is at an excavated level with a wide planter along the southern boundary. The location of carparking and loading creates a separation between the aged care building and the childcare centre on the adjoining site. The parking area is visible from Northbourne Drive making it easy to locate and it does not dominate the presentation of the development to the public domain. The location of the parking on the site is suitable for the proposed use and is compatible with the local character.
The vehicular access to the site and the pedestrian access to the site can work together. I accept Mr Nettle's uncontested expert evidence that the pedestrian access in the proposed location is safe, as follows (p 2, Ex 3): "The pedestrian crossing corridor across the porte cochere will be clearly defined, there will be quite satisfactory sight distances available and vehicles will be constrained to very low speeds due to the turning circumstances [two changes in direction before reaching the porte cochere]. In reality the pedestrian crossing arrangement is considered to in fact be "at typical" for development of this nature and there will not be any adverse amenity or safety implications."
The use of signage and markings to identify the loading area is adequate to prevent visitors parking in this area and obstructing delivery vehicles from turning and the presence of the roller door clearly denotes the position of the loading dock. Any aberrant parking by visitors can be dealt with by the management. I do not agree with the Council's position that bollards should be required because bollards would also prevent trucks turning in the loading area without the intervention of the management to move the bollards when necessary.

Conclusion

The Seniors Housing SEPP is not a relevant consideration in determining this application, because the application was made under the Growth Centres SEPP and not the Seniors Housing SEPP. As a matter of statutory construction, the provisions of the Seniors Housing SEPP do not apply to the proposed development.
I am satisfied that the scale and form of the proposal is acceptable and compatible with the low density residential character of the zone.
I am satisfied that the parking and traffic management on the site is appropriate.
I am satisfied that it is appropriate to grant development consent to the proposal. The Council tendered conditions of consent as Ex 8. The applicant filed an amended version of the conditions as Ex H and a statement of reasons for the proposed amendments. The applicant's version of the conditions sought to delete a number of conditions on the basis of obtaining further legal advice. No submissions were made, and no evidence was adduced, on the competing matters regarding the conditions.
The Court directs: 1. The parties are to file agreed conditions of consent using the NSW Planning Portal template within 3 weeks. Final orders will be made following the filing of the conditions of consent.

Amendments 14 September 2021 - Amended typographical errors at [85]. 14 September 2021 - Amended further typographical error at [85]. 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: 14 September 2021

Planning framework

The Blacktown Precinct Plan applies to land within the Marsden Park Precinct, at cl 1.3. The site is zoned R2 Low Density Residential pursuant to the Blacktown Precinct Plan. The objectives of the zone, to which regard must be had, are: • 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 allow residents to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours. • To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.
Seniors housing is a nominate use, permissible with consent, in the R2 zone. Seniors housing, in the dictionary to the Growth Centres SEPP, means residential accommodation that consists of a residential care facility.
The height of buildings development standard for the site is 9m (cl 4.3 and North West Growth Centre Height of Buildings Map - Sheet HOB_005 of the Blacktown Precinct Plan). The objectives of cl 4.3 for the height of buildings are: (a) to establish the maximum height of buildings, (b) to minimise visual impact and protect the amenity of adjoining development and land in terms of solar access to buildings and open space, (c) to facilitate higher density development in and around commercial centres and major transport routes.
There is no floor space ratio development standard for the site (North West Growth Centre Floor Space Ratio Map - Sheet FSR_005 of the Blacktown Precinct Plan).
Clause 40(4) of the Seniors Housing SEPP is in the following terms: (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 Note - Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a). (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 Note - The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. (c) a building located in the rear 25% area of the site must not exceed 1 storey in height.
Height is defined at cl 3 of the Seniors Housing SEPP as follows: height in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.
Clause 26 of the Seniors Housing SEPP is a development standard (Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153 at [77]) that requires the consent authority to be satisfied by written evidence that residents of a proposed development for seniors housing to have access to services that comply with the accessibility requirements of the clause.
Clause 48(c) of the Seniors Housing SEPP is a standard that, if met, cannot be used to refuse development consent for residential care facilities and includes: (c) landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided
The definition of landscaped area at cl 3 of the Seniors Housing SEPP is: landscaped area means that part of the site area that is not occupied by any building and includes so much of that part as is used or to be used for rainwater tanks, swimming pools or open-air recreation facilities, but does not include so much of that part as is used or to be used for driveways or parking areas.
The Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (DCP 2010) requires that applications for seniors housing are to comply with the controls in clause 4.3.4 of DCP 2010 for multi-dwelling housing, at 4.4.5.2. Multi-dwelling housing is to comply with the controls in table 4-9 of DCP 2010. Table 4-9 of DCP 2010 requires that the front setback is to be a minimum of 4.5m, the corner lots secondary street setback is to be a minimum of 2m, the side setback is to be a minimum of 0.9m and the rear setback is to be a minimum of 4m.

(2008) 160 LGERA 274

(2018) 236 LGERA 256

(2004) 133 LGERA 420

(2016) 222 LGERA 212

(2007) 156 LGERA 446

At a glance

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Cited By (2)