Teda Eastern Coast Pty Ltd v Ku-ring-gai Council

Land and Environment Court (NSW)|2022-02-02

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0341/21 for the construction of a two storey seniors' living development comprising five self-contained dwellings over basement parking (the proposal) at 26 Russell Avenue, Lindfield (the site) by Ku-ring-gai Municipal Council (the Council).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 February 2022. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
The application is made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors Housing) and the proposal for five self-contained dwellings is permissible under SEPP Seniors Housing. SEPP Seniors Housing was repealed on 26 November 2021. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021. SEPP Housing includes savings and transitional provisions at Sch 7, for a development application made, but not yet determined, on or before the commencement date of SEPP Housing, at cl 2(a) of Sch 7. The former provisions of the repealed instrument, SEPP Seniors Housing, continue to apply to the application as it was lodged on 3 August 2021. SEPP Housing is a matter for consideration pursuant to s 4.15(1)(a)(ii) of the EPA Act.
There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cl 4.6(2) of the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).

The application is amended

The Council agreed, as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), to the applicant amending the application to rely on amended architectural plans and documents. The applicant lodged the amended application on the NSW planning portal on 2 March 2022 and filed a copy of the amended application with the Court.
On 1 March 2022, the EPA Regulation 2000 was repealed, and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) commenced. The EPA Regulation 2021 includes savings and transitional provisions at Sch 6, for any act, matter or thing that, immediately before the repeal of the EPA Regulation 2000, had effect under that instrument, continues to have effect under that instrument, at cl 2 of Sch 6.

Planning framework

The site is zoned R2 Low Density Residential pursuant to LEP 2015 (Land Zoning Map - Sheet 015 of LEP 2015). The objectives of the zone, to which regard must be had, are: 1 Objectives of Zone • 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 provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
Clause 26 of SEPP Seniors Housing is in the following terms: 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), Note - (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 40(4) of SEPP Seniors Housing is in the following terms: 40 Development statndards - minimum sizes and building height … (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.

Contravention of the development standard in cl 26 of SEPP Seniors Housing

In Principal Healthcare Finance Pty Ltd v Council of the City of Ryde (2016) 222 LGERA 212; [2016] NSWLEC 153, Robson J held that cl 26 of SEPP Seniors Housing is a development standard amenable to cl 4.6 (of the Standard Instrument (Local Environmental Plans) Order 2006).
The site is land in a local government area within the Greater Sydney (Greater Capital City Statistical Area). The development standard under cl 26 of SEPP Seniors Housing requires a public transport service available to the residents who will occupy the proposal to be located at a distance of not more than 400 m from the site of the proposal and the distance is to be accessible by means of a suitable access pathway.
The site is a distance of 424.3m from the entrance to Lindfield Railway Station using the pedestrian entry steps and 434.5 m to the railway station using the pedestrian access ramp. The distance is accessible by means of a suitable access pathway within the meaning of cl 26 of SEPP Seniors Housing.
The applicant provided a written request seeking to justify the contravention of the cl 26 development standard, prepared by Minto Planning Services and dated 9 February 2022.
Clause 4.6(4) of LEP 2015 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ('Initial Action'). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal 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), as follows: 4.6 Exceptions to development standards … (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.
On appeal, the Court has the power under cl 4.6(2) of LEP 2015 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) (Initial Action at [29]).

The applicant's written request to contravene the cl 26 development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: 4.6 Exceptions to development standards …. (3) … (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
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of LEP 2015 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 at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [4]).
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; [2007] NSWLEC 827 at [42]-[51] ('Wehbe') and repeated in Initial Action [17]-[21]: 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. the 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; 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 [22]).
The applicant's written request justifies the contravention of the cl 26 development standard on the basis that compliance with the standard is unreasonable or unnecessary because the site has easy access to the Lindfield Village Shopping precinct, which commences at a distance of 375 m from the site, via an accessible pathway. The Lindfield Village Shopping precinct contains a wide range of shops and services, including medical services, and the proposal is consistent with the intention of the standard that residents of the proposal have access to shops, bank services and other retail and commercial services that residents may reasonably requirement, including community services and recreational facilities, and the practice of a general medical practitioner (Australian Nursing Home Foundation Ltd v Ku-ring-gai Council [2019] NSWLEC 1205 at [154]).
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). 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]).
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that the site has easy access to the Lindfield Village Shopping precinct, which commences at a distance of 375 m from the site, via an accessible pathway and, as a consequence, the intention of the standard, to locate seniors housing within easy pedestrian access of day to day services required by the residents, is achieved. Furthermore, the site has reasonable access to the railway station as the numerical contravention of the development standard is minor. I am satisfied that justifying the non-compliance with the numerical standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

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) of LEP 2015 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 is consistent with the zone objectives and the objective of the development standard under cl 26 of SEPP Seniors Housing, for the reasons given by the applicant in the written request to vary the development standard.

Contravention of the development standard in cl 26 of SEPP Seniors Housing

In Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73, Moore J held that cl 40(4) of SEPP (Housing for Seniors or People with a Disability) 2004 is amenable to cl 4.6 of the Ku-ring-gai LEP 2015.
The site is approximately triangular in shape and a corner allotment, with a long frontage to Russell Avenue that wraps around the site from the southern corner to the north-eastern corner, and a north-western frontage to Tryon Lane. The site has a shared boundary to the south-west with 24 Russell Avenue, and the north-western corner of the site abuts the rear of 24 Russell Avenue.
The development standard under cl 40(4)(c) of SEPP Seniors Housing requires a building located in the rear 25% area of the site not to exceed one storey. The purpose of the standard, under the note, is to avoid an abrupt change in the scale of development in the streetscape.
The applicant provided a written request seeking to justify the contravention of the cl 40(4)(c) development standard, prepared by Minto Planning Services and dated 17 January 2022.

The applicant's written request to contravene the cl 40(4)(c) development standard

The applicant's written request justifies the contravention of the cl 40(4)(c) development standard on the basis that compliance with the standard is unreasonable or unnecessary because the location of the proposal's building envelope on the site and spatial layout minimises the impact of the development upon the rear yards of the adjoining property in relation to overlooking, overshadowing and visual bulk.
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that the site has a unique configuration that does not lend itself to the identification of an unambiguous "rear" of the site. I am satisfied that justifying the non-compliance with the numerical standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

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

I am satisfied that the proposed development is consistent with the zone objectives and the objective of the development standard under cl 40(4)(c) of SEPP Seniors Housing to avoid an abrupt change in the scale of development in the streetscape, because the proposal does not contribute to an abrupt change in the scale of development within the streetscape.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 0341/21 for the demolition of existing structures and construction of a two storey seniors' living development comprising five self-contained dwellings over basement parking, at 26 Russell Avenue, Lindfield, is approved, subject to the conditions of consent at Annexure A.

Susan O'Neill Commissioner of the Court Annexure A.pdf

Amendments 01 April 2022 - Amended typographical error in the heading above paragraph [31]. 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: 01 April 2022

(2018) 236 LGERA 256

(2007) 156 LGERA 446

(2016) 222 LGERA 212

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (11)