The applicant's written request to contravene a development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (Initial Action)). The applicant's written request seeking to justify the contravention of the development standard must adequately address both:
that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and
that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe) at [42]-[51] and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):
1. The objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. The underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
3. Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
4. The development standard has been abandoned by the council; or
5. The zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).
"Sufficient environmental planning grounds" is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]). The environmental planning grounds relied on in the written request under cl 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
The applicant provided a written request seeking to justify the contravention of the site frontage development standard in SEPP Seniors Housing at cl 40(3). The applicant's written request justifies the contravention of the development standard on the following bases:
The eastern street frontage to Bannockburn Road and Reely Street is well in excess of the 20m minimum street frontage requirement in SEPP Seniors Housing. The consolidated site has a combined street frontage to Bannockburn Road and Reely Street of 47.855m, a frontage to Bobbin Head Road of 18.29m and a site depth of in excess of 120m.
The site frontage to Bobbin Head Road whilst having a frontage at the building line of less than 20m, is to support a single dwelling which presents to Bobbin Head Road and its associated driveway and will provide an outcome consistent with that envisaged by the Ku-ring-gai LEP & DCP for development within the R2 - Low Density Residential zone.
The proposal is otherwise compliant with the prescriptive requirements of the SEPP Seniors Housing.
The presentation of the development to Bobbin Head Road will not result in any unreasonable streetscape impacts noting that the development will only contain a single dwelling presentation to Bobbin Head Road consistent with the requirements of the Council for the R2 - Low Density Residential zone.
The proposal will not result in any unreasonable impacts upon the adjoining properties as a result of the street frontage measured at the building line to Bobbin Head Road.
The development site is a large site which will involve the consolidation of 4 individual parcels of land having a combined site area of 5,357m2. The site is a substantial parcel of land.
The site frontage to Bobbin Head Road of 18.29m is consistent with the current subdivision requirements for an allotment located within the R2 - Low Density Residential zone as required by cl 4.1(3A)(a) of the LEP 2015.
The proposal provides for a single dwelling house structure presenting to Bobbin Head Road together with a driveway which serves that dwelling only. Having regard to the compliant allotment width, it is considered that such an outcome is completely consistent with that envisaged for the site as it presents to Bobbin Head Road.
All driveway access for the remainder of the development is to be from Reely Street such that the development will not present as a Seniors Living development from Bobbin Head Road.
We are not satisfied that the written request has adequately addressed that compliance with the site frontage development standard in SEPP Seniors Housing is unnecessary or unreasonable in the circumstances of this proposal for the following reasons:
Both the western site frontage to Bobbin Head Road and the eastern site frontage to Bannockburn Road and Reely Street are "site frontages" within the meaning of cl 40(3) of SEPP Seniors Housing. The Bobbin Head Road frontage is not a "secondary frontage", because when viewed from the public domain in Bobbin Head Road it is clearly a site frontage and it will not be read as a secondary frontage to the primary site frontage elsewhere.
The front setback of House 8 to the Bobbin Head Road boundary is 7.4m to match the setback of 81 Bobbin Head Road. The topography along the eastern side of Bobbin Head Road falls to the south, so that the site is approximately 3.5m higher that 81 Bobbin Head Road. 81 Bobbin Head Road has a wider frontage than the site and the dwelling is positioned in the centre and southern portion of the site, with a garage significantly setback from the building line on the northern side. 81 Bobbin Head Road is forward of the building line of its southern neighbour at 79 Bobbin Head Road. The existing dwelling to the north of the site at 85 Bobbin Head Road has a much greater front setback of approximately 20m. House 8 is approximately 15m wide and occupies the majority of the allotment, with a narrow side setback on the northern side of approximately 1.2m and a side setback on the southern side of approximately 2.2m. The side setback on the southern side accommodates a pedestrian entry into the site for all 14 dwellings. To accommodate the disparity in front setback between 81 and 85 Bobbin Head Road and the relatively narrow frontage of the site when compared to its neighbours, House 8 should have a front setback that approximately averages the setbacks of its neighbours with a side setback to 85 Bobbin Head Road that maintains a generous landscaped curtilage around House 8.
To adopt the front setback of the southern neighbour at 81 Bobbin Head Road ignores the change in level between the site and its lower neighbour and the generous northern setback of the dwelling at 81 Bobbin Head Road. The site has a stronger relationship to 85 Bobbin Head Road than to 81 Bobbin Head Road because of the similar levels of the site and 85 Bobbin Head Road, whereas 81 Bobbin Head Road is at a lower level and the dwelling is positioned with a generous northern side setback. The proximity of House 8 to the shared boundary of 85 Bobbin Head Road, it's position significantly forward of the dwelling at 85 Bobbin Head Road and the width of House 8 across the site ignores the constraint of the relatively narrow frontage to Bobbin Head Road and the relationship between the proposal and 85 Bobbin Head Road. These factors result in House 8 proportionally dominating the Bobbin Head Road elevation.
The proposal has a detrimental visual and privacy impact on the neighbour at 85 Bobbin Head Road because House 8 is positioned close to the shared boundary and much closer to the street boundary compared to 85 Bobbin Head Road. House 9 is directly behind and attached to House 8 and House 10 is behind House 9, so that there is built form adjacent to the length of the shared boundary between the site and 85 Boundary Road, contrary to the established character of the R2 Low Density zone. The changes made to Houses 8 and 9 in Exhibit U have improved the relationship between the proposal and 85 Bobbin Head Road by increasing the setback of the upper level, however, the minimal front setback of the proposal still has an unacceptable detrimental impact on the setting of 85 Bobbin Head Road.
The proposal does not adequately respond to the constraint of the relatively narrow site frontage to Bobbin Head Road when compared to the more generous frontages of neighbouring properties and we are not satisfied that the written request adequately justifies the non-compliance of the proposal with the site frontage development standard of 20m at cl 40(3) of SEPP Seniors Housing.
The agreed evidence of the planning experts (Exhibit S) unnecessarily deals with the legal issue regarding whether the development standards contained in SEPP Seniors Housing are capable of variation by way of cl 4.6 of LEP 2015; yet their evidence does not engage with the substance of the applicant's written request to vary the development standard.
We are not satisfied that the applicant's written request to contravene the site frontage development standard in SEPP Seniors Housing has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.
[2]
Contravention of the access standard at cl 41 and Schedule 3, Part 2 (17) of SEPP Seniors Housing
The proposal includes 7 houses which do not comply with the following standard for self-contained dwellings at cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing:
17 Access to kitchen, main bedroom, bathroom and toilet
In a multi-storey self-contained dwelling, the kitchen, main bedroom, bathroom and toilet must be located on the entry level.
The applicant seeks an exception to the access standard for self-contained dwellings in SEPP Seniors Housing. The applicant provided a cl 4.6 written request in support of a variation to the standard, which was marked as Exhibit Z.
[3]
The applicant's written request
The applicant provided a written request seeking to justify the contravention of the accessibility standard at cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing. The applicant's written request justifies the contravention of the development standard on the following bases:
The proposal provides for 7 dwellings, Houses 1, 2, 4, 5, 6, 8 and 14 which do not comply with the requirements of cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing to locate the kitchen, main bedroom, bathroom and toilet on the entry level.
All the dwellings which do not comply with the accessibility standard have an internal lift. A private lift will provide convenient and appropriate access between the levels.
All the dwellings which do not comply with the accessibility standard contain as a minimum a kitchen, bathroom and toilet on the entry level.
All of the dwellings which do not comply with the accessibility standard contain a room, typically a study, which could be utilised as a short term bedroom in the event that the lift was not working.
All of the subject dwellings are capable of being fitted with a stair climber as an alternative to the lift in the event it was inoperative.
The proposal is located on land that has a varying topography, which has necessitated dwellings to be designed in response to that topography. When combined with a need to provide an appropriate built form outcome of reduced upper level bulk, has necessitated some dwellings not having a kitchen, main bedroom, bathroom and toilet located on the entry level.
Strict compliance with the standard would potentially result in a reduction in the number of dwellings provided on the site.
The proposal results in a high quality architectural outcome for the site which will make a positive contribution to the locality.
We are not satisfied that the written request has adequately addressed that compliance with the accessibility standard in SEPP Seniors Housing is unnecessary or unreasonable in the circumstances of this proposal for the following reasons:
Houses 1, 2, 4, and 8 do not comply with the requirements of cl 41 and Sch 3, Pt 2, cl 17 of SEPP Seniors Housing to locate the kitchen, main bedroom, bathroom and toilet on the entry level (Exhibit U). House 1 has the main living areas and main bedroom on the upper level with the entry on the lower level. House 2 has the living areas on the lower level and the main bedroom on the upper level. House 4 has the living areas and main bedroom on the upper level with the entry on the lower level. House 8 has the living areas on the lower level with a study, and the main bedroom on the upper level.
Not all dwellings which do not comply with the accessibility standard contain a kitchen, bathroom and toilet on the entry level, including Houses 1, 4 and 8.
Not all dwellings which do not comply with the accessibility standard contain a room, typically a study, which could be utilised as a short term bedroom in the event the lift was not working.
The reason for the non-compliance with the standard is the number of self-contained dwellings located on the site, which has necessitated a number of attached dwellings with small footprints and their accommodation spread over two levels, in order to fit 14 self-contained dwellings on this site. In addition, the oversized single garages, which are 5.5m wide with a double garage door, occupy a significant area of the entry level and preclude other accommodation being located on the entry level of dwellings.
We do not accept that the topography of the site necessitates two levels with a significant portion of the accommodation located on the upper level. In our view, it is possible to reduce the overall number of dwellings and fit dwellings with a single garage, entry foyer, main bedroom and bathroom including a toilet and kitchen and living areas on the lower level with a bedroom, study and bathroom located on the upper levels within the roof form, to comply with the accessibility standard.
We do not accept that a lift in a dwelling provides the equivalent accessibility to the convenience of locating the kitchen, main bedroom, bathroom and toilet on the entry level.
There are no constraints on this site, including the topography of the site, that warrant a variation of the accessibility standard.
We are not satisfied that the applicant's written request to contravene the accessibility standard in SEPP Seniors Housing has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.
[4]
Conclusion
The standards in SEPP Seniors Housing are amenable to variation under cl 4.6 of LEP 2015 because cl 4.6 can be applied to another environmental planning instrument, at cl 4.6(2); and because there is no express exclusion of the development standards in cll 40 and 41 of SEPP Seniors Housing to the operation of cl 4.6, as envisaged by cl 4.6(2), "this clause does not apply to a development standard that is expressly excluded from the operation of this clause".
The applicant's cl 4.6 written request to contravene the site frontage development standard in SEPP Seniors Housing has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.
The applicant's cl 4.6 written request to contravene the accessibility standard in SEPP Seniors Housing has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2015.
Clause 4.6(4) of LEP 2015 establishes preconditions that must be satisfied before the Court, exercising the functions of a consent authority, can exercise the power to grant development consent. As we have determined that those pre-conditions have not been met, there is no power to grant development consent to the proposal. Consequently, it is not necessary to determine the remaining contentions.
[5]
Orders
The orders of the Court are:
1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits U, V and X, subject to the applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed.
2. The appeal is dismissed.
3. Development Application No. 0402/17 for a seniors housing development of 14 self-contained dwellings at 102 and 104 Bannockburn Road, 2 Reely Street, Pymble and 83 Bobbin Head Road, Turramurra, is refused.
4. The exhibits, other than Exhibits 1, 11, A, U, V and X, are returned.
Susan O'Neill and Tim Horton
Commissioners of the Court
[6]
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 November 2018
Parties
Applicant/Plaintiff:
Pymble Villas Pty Ltd
Respondent/Defendant:
Ku-ring-gai Council
Cases Cited (4)
Council's submissions - the development standards contained in SEPP Seniors Housing are not capable of variation by way of cl 4.6 of LEP 2015
The Council submits that cl 4.6 of LEP 2015 cannot be used to vary development standards in SEPP Seniors Housing, because cl 15 of SEPP Seniors Housing establishes a precondition to the grant of consent under SEPP Seniors Housing that must be satisfied before Chapter 3 of SEPP Seniors Housing will allow development for the purposes of seniors housing. The SEPP Seniors Housing provides a "conditional" right to permissibility. If the development for the purpose of seniors housing is not carried out in accordance with SEPP Seniors Housing, then the cl 15 "gateway" remains closed and Chapter 3 of SEPP Seniors Housing cannot operate to displace or circumvent any prohibition against development for the purposes of seniors housing in another environmental planning instrument.
When cl 15 of SEPP Seniors Housing is read in context, particularly in conjunction with cl 2(2)(a), it is reasonably to be inferred that development will not be carried out "in accordance with this policy" within the meaning of cl 15 if the development does not comply with the development standards expressed in mandatory terms, such as cl 40(3) of SEPP Seniors Housing.
Clause 16 supports the construction of cl 15 advanced by the Council as it states that development "allowed by this chapter" may be carried out with the consent of the relevant consent authority.
SEPP Seniors Housing does not give carte blanche permission to override a considered prohibition in an environmental planning instrument, rather it is facultative and beneficial in its effect, within appropriate bounds, by providing a mechanism to permit a prohibition against seniors housing in another environmental planning instrument to be displaced or circumvented, but only if certain standards prescribed by the SEPP Seniors Housing in mandatory terms are achieved.
As the proposal does not meet the development standard for a minimum site frontage of 20m mandated by cl 40(3) of SEPP Seniors Housing, it follows that the benefit of cl 15 is not enlivened, because its express precondition has not been met.
Clause 4.6 in LEP 2015 has a legitimate realm of operation in permitting variation of a development standard where the development is permissible, but not where the development is prohibited. It is not the role of cl 4.6 to displace a prohibition.
The Court is not bound by the decision in Ku-ring-gai Council v Pathways Property Groups Pty Ltd [2018] NSWLEC 73 (Pathways).