Teda Northshore Pty Ltd v Willoughby City Council

Land and Environment Court (NSW)|2021-09-28

A Pickles (Applicant) B Dyer (Solicitor) (Respondent)

Solicitors: Pikes and Verekers Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2021/54509 Publication restriction: No

Judgment

COMMISSIONER: Teda Northshore Pty Ltd (the Applicant) has appealed the refusal by Willoughby City Council (the Respondent) of its development application DA-2020/240, made with owner's consent, seeking consent for the demolition of existing two structures and construction of a seniors living development consisting initially of seven, now of six, self-contained dwellings with car parking, along with the removal of eight trees (the Proposed Development) at 99 Beaconsfield Road and 22B Greville Street, in Chatswood (the Subject Site).

Amended plans

On 15 July 2021, the Applicant had been granted leave by the Court to rely on the following amended materials and additional information: 1. amended plans produced by MHN Design Union, Revision F, dated 14 July 2021; 2. two written requests to vary development standards prepared by Mr Tony Moody in relation to the Proposed Development's non-compliances with cll 26(b)(iii) and 40(4)(b) of SEPP Seniors; 3. a root mapping report, prepared by Urban Forestry Australia, dated 28 July 2021; 4. landscape plans prepared by Volkler Klemm Landscape Design, Revision F, dated June 2021; 5. a landscape planting schedule prepared by Volkler Klemm Landscape Design; 6. footpath gradient diagrams, prepared by ACOR Consultants Pty Ltd, Issue A, dated 5 March 2021; 7. swept path analyses, prepared by Varga Traffic Planning Pty Ltd, Ref 20217, dated 31 May 2021.
The amendments contained within the materials for which leave was granted on 15 July 2021 included: 1. A reduction in the number of units within the Proposed Development from seven to six units; 2. a reduction in the number of dwellings at the rear of the Subject Site from three to two; 3. the two dwellings located at the rear of the Subject Site were reduced from two storey structures to single storey structures; 4. the setback of the façade of dwelling V2 at the rear north-western corner of the Proposed Development and the western boundary of the Subject Site was increased from 900mm to 4m; 5. the setback distance between the façade of dwellings V1 and V2 and the northern boundary of the Subject Site was increased from 6.0m to 7.5m; 6. two accessible car spaces were provided in accordance with the requirements of Australian Standard AS2890.1; 7. three trees identified as T5, T31 and T43, and said to be listed on the Willoughby Natural Heritage Register, that were originally proposed for removal, were now to be retained; 8. a reduction on the Proposed Development's FSR from 0.684:1 to 0.56:1, consistent with the definition of gross floor area (GFA) within SEPP Seniors; 9. an increase in total landscaped area from 848m2 (or 38.4% of site area) to 924m2 (or 42% of site area) consistent with the definition of landscaped area within SEPP Seniors; 10. an increase in the area of deep soil from 489m2 (or 22% of site area) to 650m2 (or 29% of site area).
During the hearing, the Applicant sought further leave to rely on amended plans, referred to as the Issue F plans dated 24/9/21, which provided further refinements to its Proposed Development.
The Respondent confirmed that it did not oppose the grant of leave and agreed to the Applicant amending its development application to rely on those amended plans.
Noting that the Respondent, as the consent authority for the purposes of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) had agreed to the Applicant amending its development application, the Court made certain directions in relation to the uploading of the amended application to the NSW Planning Portal (see below at [107]).

Site context

As noted above, the Subject Site consists of two lots providing dual frontages to both Beaconsfield Road and Greville Street, Chatswood.
The lot at 99 Beaconsfield Road has an area of 1170m2 and the lots at 22B Greville Street has an area of 1022m2, providing a Subject Site with a total area of 2192m2.
The configuration of the Subject Site, consisting of two lots with a frontages to Greville Street and Beaconsfield Road, is illustrated int the figure below. Figure 1: the Subject Site, and its two lot configuration, outlined in red
The Respondent noted in opening that the Subject Site was not mapped as either bushfire prone land or as flood prone land. It also said that the Subject Site contained no heritage item and was not located in the vicinity of any heritage item. Consequently, cll 5.10 (concerning heritage), 5.11 (concerning bushfire), 6.3 (concerning flooding), 4.4 and 5.7 ( in relation to development on foreshore land and below mean high water) of WLEP have no work to do in relation to the Proposed Development.

Notifications and objector submissions

Pursuant to the provisions of cl 77 of the EP&A Regulation, as well as the provisions of Willoughby Development Control Plan 2006 (WDCP) and Willoughby Community Participation Plan 2020 (WCPP), the Proposed Development was notified between 15 October and 5 November 2020. The Respondent received 50 submissions in response to that notification.
The Applicant's amended plans were notified between 6 and 27 August 2021, and 26 submissions were received by the Respondent in response to that notification.
At the commencement of the hearing in this appeal, oral submissions were provided by the following six objectors, all residents of Greville Street or Beaconsfield Road: 1. Mr Eugene Foo 2. Mr Gavin Dayton 3. Mr Rodney Jacome 4. Mr Patrick van Oort 5. Mr Ian Muir 6. Dr Meredith Foley
These objectors had previously provided written submissions in response to the notification of the Applicant's Proposed Development and its amended plans. The objectors submitted that they held concerns in relation to the following aspects of the Proposed Development: 1. planning matters, concerning: 1. the character of the Proposed Development and whether it was compatible with the character of the local area; 2. the built form of the Proposed Development, including its proposed bulk, height and what was said to be overly long and unrelieved walls; 3. the floor space ratio (FSR) of the Proposed Development which was said to exceed the FSR development standards applicable to developments on the Subject Site; 4. the compliance of the Proposed Development with the provisions of SEPP Seniors including the standard in cl 40(4)(c) that a building located in the rear 25% area of the Subject Site must not exceed one (1) storey in height; 5. potential overshadowing and view impacts of the Proposed Development; 6. potential noise impacts from the Proposed Development; 7. potential impacts of tree removal, including in relation to biodiversity; 1. potential parking and traffic safety impacts, including accessibility and the availability of sufficient clearance for ambulances within the Proposed Development; and 2. potential stormwater impacts of the Proposed Development.

Certain contentions considered resolved by the Parties and their expert planners

Following the Court's grant of leave to the Applicant for it to rely on amended plans (see above at [6]), the Respondent filed an amended statement of facts and contentions in which it no longer pressed contentions concerning the following matters: 1. a non-compliance of the Proposed Development with development standards in cl 40(4)(b) and 40(4)(c) of SEPP Seniors in relation to the height development standard in SEPP Seniors, and the number of storeys permitted for buildings adjacent to a boundary or within the rear 25% of the Subject Site; 2. a non-compliance with respect to access requirements prescribed in SEPP Seniors; 3. the density and scale of the Proposed Development that the Respondent had previously considered to be excessive; 4. the removal of major trees on the Subject Site that the Respondent had previously said was unreasonable; 5. the adequacy of the landscape amenity provided by the Proposed Development; and 6. the adequacy of accessible parking within the Proposed Development;
At the commencement of the hearing, the Respondent advised that, consistent with its removal of these contentions from its amended statement of facts and contentions, the resolution of the substantive contentions in the appeal had been confirmed within the evidence of the Parties' expert planners following their consideration of the Applicant's amended plans, who agreed that: 1. the Applicant's amended plans had resolved planning contentions concerning height and the built form adjacent to boundaries of the Subject Site, as follows: 1. first, the Proposed Development complies with the height standard of cl 40(4)(a) of SEPP Seniors and the expert planners agree that the Proposed Development complies with the maximum height standard of 8.0m in accordance with the definition of 'height' within cl 3 of SEPP Seniors; 2. second, while cl 40(4)(b) of the Seniors SEPP requires that any building adjacent to a boundary of the Subject Site must not be more than two (2) storeys in height, and while the Section Drawing (DA 3100) shows the building fronting Beaconsfield Road contains three (3) storeys, the Applicant had provided a written request pursuant to cl 4.6 of WLEP to vary this standard, and the expert planners agreed that the request was well founded and resolved the contention; 3. clause 40(4)(c) of the Seniors SEPP requires a building within the rear 25% of the Subject Site must not exceed one (1) storey in height, and the amended proposal shows the dwellings in the rear of the site (identified as proposed buildings V1 and V2) are now single storey and therefore the proposal complies with this development standard; 1. the Applicant's amended materials had also resolved planning contentions concerning access requirements as follows: 1. the experts had agreed that while there is a bus service available within 400m of the Proposed Development, this service does not operate on Sunday. As a consequence, the Proposed Development does not comply with the provisions of cl 26(b)(iii) of SEPP Seniors which requires that public transport should be available at a certain time on every day of the week; 2. the Applicant has provided a written request to vary this development standard, pursuant to the provisions of cl 4.6 of WLEP, and the Parties' expert planners concluded that the request is well founded and resolved the contention; 1. the Applicant's amended plans had also resolved planning contentions concerning density, bulk and scale of the Proposed Development as follows: 1. the Proposed Development, as amended, had resulted in a reduction in the development's floor space ratio (FSR) from 0.684:1 to 0.56:1; 2. the amended FSR of 0.56:1 exceeds the 'must-not-refuse 'standard of 0.5:1 in cl 50(b) of SEPP Seniors and is non-compliant with the FSR development standard of 0.4:1 appliable to the Subject Site under cl 4.4 of WLEP; 3. the Applicant had tendered a written request, prepared pursuant to cl 4.6 of WLEP, to vary the FSR development standards under cl 50(b) of SEPP Seniors and cl 4.4 of WLEP, as they applied to the Proposed Development, and the Parties' expert planners: 1. opined that, while the written request was not required in relation to cl 50(b) of SEPP Seniors, it had been provided "for abundant caution"; and 2. considered this request to be well founded in respect of both cl 50(b) of SEPP Seniors and cl 4.4 of WLEP, and resolved this contention concerning FSR; 1. the Applicant's amended plans had also resolved planning contentions concerning the removal of trees, as follows: 1. based on the advice of the Respondent's Landscape Officer, the expert planners confirmed that the following trees listed in the Willoughby Natural Heritage Register were proposed to be removed under the original proposal, but are now proposed to be retained under the amended proposal: 1. Tree T5 - Narrow Leave Scribbly Gum within the front yard of 99 Beaconsfield Road. 2. Tree T31 - Red Mahogany within the rear yard of 22B Greville Street. 3. Tree T43 - Narrow-Leaved Scribbly Gum within the front yard of 22B Greville Street. 1. based on the further advice of the Respondent's Landscape Officer, the expert planners confirmed that the following trees listed in the Willoughby Natural Heritage Register remain proposed for removal: 1. Tree T4 - Narrow Leave Scribbly Gum within the front yard of 99 Beaconsfield Road. 2. Tree T44 - Sydney Red Gum within the front yard of 22B Greville Street. 1. the Respondent's Landscape Officer had advised that this contention was now resolved as a consequence of the Applicant's amended proposal because: 1. the removal of Tree T4 is acceptable, as it is located within the access driveway off Beaconsfield Road. The proposed location of the driveway causes the least disruption to the landscaped area and trees within the front setback area to Beaconsfield Road. 2. the removal of Tree T44 is acceptable, as based on an inspection of the tree, the recommendation for the removal of the tree as detailed in the Root Mapping Report prepared by the Applicant's Arborist of Urban Forestry Australia, can be supported. 1. the Applicant's Landscape Plans within its amended Proposed Development provided for the planting and retention of an acceptable number of trees, shrubs and screening that would include adequate natural features and landscaping on the Subject Site; 1. the Applicant's amended plans had also resolved planning contentions concerning landscape amenity, as follows: 1. the amended proposal met the neighbourhood and amenity design principles in cl 33 of the SEPP Seniors, and were acceptable for the following reasons: 1. the Proposed Development as amended would retain significant trees in the front setback areas to Beaconsfield Road and Greville Street; 2. the dwellings to the rear of the Subject Site (proposed dwellings V1 and V2) would provide substantial setback distances to each relevant boundary of the Subject Site and allow for adequate tree planting and screening, which would minimise the visual scale of the Proposed Development and provide adequate privacy in addition to changes in bulk and scale of buildings referred to above at [(1)] and [(3)]); 3. the Applicant's proposed soft landscaped area has been increased from 848m2 (38.6%) to 924m2 (42%) which complied with the provisions of SEPP Seniors; 1. the Proposed Development (as amended) meets the objectives of cl 33(e) and (f) of the SEPP Seniors; 2. the expert planners agree that the Proposed Development (as amended) also satisfies subcll 33(a), (c) and (d) of SEPP Seniors and subcll 33(b) and (g) are not applicable to the Proposed Development; 1. the Applicant's amended plans have also resolved planning contentions concerning the provision of accessible parking, as follows: 1. schedule 3, cl 5 of SEPP Seniors does not stipulate that all parking spaces within the Proposed Development must be accessible parking spaces in accordance with AS 2890.1; 2. the Proposed Development (as amended) includes two (2) disabled parking spaces in accordance with AS 2890.1 and the expert planners consider that the Proposed Development now provides adequate accessible parking spaces.
Notwithstanding the above conclusions of the Parties' expert planners, I note that two of the planning contentions, concerning the Proposed Development's non-compliance with the height development standard in cl 40(4)(b) of SEPP Seniors, and its non-compliance with the development standard in cl 26(2)(b)(iii) of SEPP Seniors concerning the location and access to facilities, are subject of written requests to vary those standards.
The Applicant has also provided a written request to vary the FSR development standard applicable to the Proposed Development under the provisions of cl 50(b) and cl 4.4 of WLEP.
These written requests seeking to vary development standards have been prepared pursuant to cl 4.6 of WLEP, and notwithstanding the conclusions of the expert planners in relation to these requests, the Court must also be satisfied that the requests are well founded.
As a consequence, I will first assess these three written requests to confirm, to my satisfaction, whether or not they are well founded, as this a pre-condition to the grant of consent. This task is undertaken below, prior to consideration of the remaining conditions in the appeal.

Remaining contentions

The Respondent's amended statement of facts and contentions identified that the remaining contentions in the appeal concerned the following matters which related to the provision of information by the Applicant: 1. the manoeuvrability and access of vehicles on the Subject Site and satisfaction of the provisions of Part C4 of WDCP in relation to transport requirements; 2. the provision of information required to satisfy the provisions of Part C5 of WDCP and Australian Standard AS3500.3 in relation to water management and stormwater drainage; 3. the acceptability of proposed footpath works, and the need for certain cross and long sections of proposed footpath works; 4. the public interest.
The Court was assisted in its considerations of these contentions by the evidence of the Parties experts as follows: 1. the Parties' expert planners, Mr Tony Moody, for the Applicant, and Mr Christopher Nguyen, for the Respondent; 2. the Parties' stormwater engineering experts, Mr Bruce Kenny, for the Applicant, and Mr Joseph Bazergy, for the Respondent; 3. the Parties' expert traffic engineers, Mr Robert Varga, for the Applicant, and Mr Joseph Bazergy, for the Respondent.

Environmental Planning and Assessment Act 1979

The objects of the EP&A Act at s 1.3 are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment
Section 4.15(1) of the EP&A Act provides that: (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, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. State Environmental Planning Policy (Housing) 2021
State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) was made on 26 November 2021 but in October 2021, at the time of hearing, a Draft of the Housing SEPP had been publicly exhibited.
Section 2(a) of Schedule 7 of the Housing SEPP contains a savings provision in the following terms: "The former provisions of a repealed instrument continue to apply to the following - (a) a development application made, but not yet determined, on or before the commencement date," …
Consequently, the Applicant's development application that is the subject of this appeal, remains subject to the provisions of SEPP Seniors, and the Parties agree, applying the reasoning of Robson J in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 at [16]-[22], that the provisions of the Housing SEPP should be given limited or no weight in these proceedings. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
The Proposed Development is for construction of a seniors living development, subject to the provisions of SEPP Seniors.
The aims of SEPP Seniors are provided at its cl 2 as follows: 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.
Under cl 5(3) of SEPP Seniors, if SEPP Seniors is inconsistent with any other environmental planning instrument, made before or after SEPP Seniors, SEPP Seniors prevails to the extent of the inconsistency.
Clause 13 of SEPP Seniors defines various housing types that fall under the jurisdiction of the SEPP, including at cl 13(1) "self-contained dwellings" which are the form of dwelling within the Proposed Development and which are defined as: General term: "self-contained dwelling" In this Policy, a self-contained dwelling is a dwelling or part of a building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in the dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.
Chapter 3 of SEPP Seniors provides guidance and requirements in relation to developments for seniors housing, and cl 13 within that Chapter provides the objective for the provisions of Chapter 3 as follows: 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.
Clause 26 of SEPP Seniors requires: 1. under subcl 26(1) that 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 subcl (2) to - 1. shops, bank service providers and other retail and commercial services that residents may reasonably require, and 2. community services and recreation facilities, and 3. the practice of a general medical practitioner; and 1. under subcl 26(2)(b)(iii) that access complies with this clause if in the case of a proposed development on land in a local government area (LGA) within the Greater Sydney, which includes the Willoughby LGA, there is a public transport service available to the residents who will occupy the proposed development 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).
Clause 30 of SEPP Seniors concerns the requirements for a site analysis for a Seniors Living development, and: 1. subclause 30(1) provides that a consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with this clause; and 2. subclauses 30(2) and 30(3) provide further details in relation to the detail to be included in the site analysis.
Part 3 Div 2 of SEPP Seniors provides design principles in relation to seniors living developments, including in relation to neighbourhood amenity and streetscape, visual and acoustic privacy, solar access and design for climate, stormwater, crime prevention and accessibility, and waste management.
Clause 40 of SEPP Seniors provides development standards in relation to minimum sizes and building height. They include: (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 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.
Clause 50 of SEPP Seniors provides standards that cannot be used to refuse development consent for self-contained dwellings, and provides under subcl 50(b) that consistent must not be refused for a development made under Chapter 3 of the SEPP if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less.

Willoughby Local Environmental Plan 2012

The following provisions of WLEP are of relevance in this appeal: 1. Clause 2.3 concerning zone objectives and land use table, and in relation to which: 1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and 2. the Subject Site is zoned R2 Low Density Residential, the objectives of which 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 accommodate development that is compatible with the scale and character of the surrounding residential development. To retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality. To retain the heritage values of particular localities and places. To encourage self-sufficiency with respect to energy and food supply. 1. clause 4.3, concerning height of buildings (HoB), and which provides a development standard of 8.0m for developments on the Subject Site, and which has the following objectives: (a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape, (b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores, (d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development, (e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (f) to use maximum height limits to assist in responding to the current and desired future character of the locality, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas 1. clause 4.4 concerning FSR and which provides a development standard of 0.5:1 for developments on the Subject Site, and which has the following objectives: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone, (e) to permit higher density development at transport nodal points, (f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood, (i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas, (j) to encourage the consolidation of certain land for redevelopment, (k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses. 1. clause 4.6 which facilitates consideration of requests seeking exception to development standards, and which relevantly provides: (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 Planning 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. 1. clause 6.2 concerning earthworks which provides: (1) The objectives of this clause are as follows - (a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, (b) to allow earthworks of a minor nature without requiring separate development consent. (2) Development consent is required for earthworks unless - (a) the work is exempt development under this Plan or another applicable environmental planning instrument, or (b) the work is ancillary to other development for which development consent has been given. (3) Before granting development consent for earthworks, the consent authority must consider the following matters - (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

Willoughby Development Control Plan 2006

Although not applying to applications made pursuant to SEPP Seniors, WDCP notes that proponents of such applications are advised to have regard to the performance criteria of the general controls of WDCP when developing in the R2 Low Density Residential, and which, relevantly in the current appeal, include: 1. the provisions of Part C.4 concerning transport requirements; 2. the provisions of Part C.5 concerning water management; and 3. the rear and side setback controls in Part D.1.7.

Consideration of the Applicant's written requests to vary development standards

As noted above (at [21] and [22]), the Applicant has provided three written requests, pursuant to the provisions of cl 4.6 of WLEP, to vary the development standards applicable to the Proposed Development in subcll 26(2)(b)(iii), 40(4)(b)and 50(b) of SEPP Seniors, and cl 4.4 of WLEP. These requests are now considered ad seriatim.

Is the Applicant's written request to vary the location and access to facilities development standard under cl 26(2)(b)(iii) of SEPP Seniors well founded?

The Proposed Development does not satisfy the provisions of cl 26(2)(b)(iii) of SEPP Seniors because there is no public transport service available to future occupants of the development on Sundays.
The Applicant has provided a written request, pursuant to the provisions of cl 4.6 of WLEP (see above at [43(4)]), seeking to vary the development standard in cl 26(2)(b)(iii) of SEPP Seniors (see above at [38(2)]) and the request states that the variation to the standard is justified for the following merit reasons: 1. the Applicant's Proposed Development includes a private bus service that would provide the requisite number of services required to access services on Sundays as required under cl 26 of SEPP Seniors; 2. the Applicant has agreed to the imposition of a condition as part of any grant of consent to the Proposed Development to ensure that the proposed use of a private bus service to provide access to services on a Sunday is made available to occupants of the Proposed Development in perpetuity; 3. the Applicant's proposed private bus service on Sundays would be sufficient in providing a transport service for the occupants of the Proposed Development, as amended, which now consists of six (6) dwellings.
The Parties expert planners had agreed within their joint expert report that the Applicant's request to vary the development standard in cl 26 of SEPP Seniors was well founded and should be upheld.
Under cl 4.6(3) of WLEP, a consent authority must not grant consent to a development that does not satisfy a development standard unless the consent authority has considered a written request from the applicant seeking to justify the contravention of the development standard by demonstrating that: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and 2. there are sufficient environmental planning grounds to justify contravening the standard.
In addition, under cl 4.6(4) of WLEP, the consent authority must also be satisfied that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.
In assessing whether compliance with the standard is unreasonable and unnecessary, it appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (hereafter referred to as 'Wehbe') in which five pathways were identified that could be applied to establish whether compliance is unreasonable or unnecessary. These are to establish that compliance with the development standard is unreasonable or unnecessary because: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
The Applicant's cl 4.6 written requests relies on the first of these pathways, and notes that while the standard in cl 26 of SEPP Seniors does not have an explicit objective, the clause forms part of Ch 3 of SEPP Seniors and cl 14 of SEPP Seniors provides the implicit objective for Ch 3 as follows: 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.
The Court has previously considered the question of whether the provisions of cl 26 of SEPP Seniors can be varied through a written request pursuant to cl 4.6 of an LEP such as WLEP in the judgement of Dixon SC in Australian Nursing Home Foundation Ltd v Ku-ring-gai Council [2019] NSWLEC 1205 (hereafter referred to as 'Australian Nursing Home').
In Australian Nursing Home, the Senior Commissioner noted (at [163]) that: "(163) Clause 26 is plainly a development standard and this view is supported by the reasoning in Georgakis at [40]-[46] which dealt with an identical provision under an older version of the SEPP as accepted by the Court in Principal Healthcare."
The Senior Commissioner then concluded (at [165] that: "In short, the clause was analysed in the context of the whole instrument and found to be a development standard. There is no proper reason why I should depart from the law as recently pronounced and followed in Pathways - (accepting that Moore J's decision focused on cl 40 of the SEPP and therefore is not directly on point). At [52] of the judgment, Robson J states: "… properly construed, cl 26 does not act to prohibit development. Rather it serves the objective of Ch 3 set out in cl 14 of SEPP (HSPD), which is partly to ensure that 'housing is located…in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail'. The locational requirements for 'independent, mobile and active' seniors, who are … more likely to travel to attend shops, banks and other facilities, are naturally different to 'those who are frail' and cannot independently visit such locations. As such, whilst the locational criteria in cl 26 of SEPP (HSP) may be suited to those who reside in self-contained dwellings, they are not necessarily suited to 'frail' persons who reside in residential care facilities." Accepting that cl 26 is a development standard, there is no contention in this case that there is any inconsistency between cl 26 of the SEPP and cl 4.6 of the KLEP - which by its terms applies to all environmental planning instruments."
Similarly, I agree that cl 26 of SEPP Seniors is a development standard, serving the objective of Ch 3 of the SEPP, and open to being varied through a written request pursuant to cl 4.6 of WLEP.
As noted by Preston CJ at [13] in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (hereafter referred to as 'Initial Action'): 1. cl 4.6(4) of WLEP establishes preconditions that must be satisfied before the Court can exercise the functions of the consent authority and enliven the power to grant development consent under cl 4.6(2) of WLEP; and 2. the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]); as follows: 1. satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of WLEP that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out; and 2. as required by cl 4.6(4)(b) of WLEP satisfaction that the concurrence of the Secretary has been obtained, noting that the Court: 1. 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(2) Land and Environment Court Act 1979 (LEC Act); 2. should still consider the matters in cl 4.6(5) of WLEP (see Initial Action at [29]).
The written request sets out the terms of cl 4.6 of WLEP and cl 26 of SEPP Seniors, and states, relying on the first of the pathways in Wehbe (see above at [51(1)]), that the Proposed Development achieves the objective of cl 26 through the Applicant's proposed provision of a private bus service on a Sunday, which meets the access to services requirements of cl 26(2)(b)(iii) of SEPP Seniors, and in doing so, achieves the objective of Ch 3 of SEPP Seniors because the Proposed Development is: 1. located within 400m of the required services identified within SEPP Seniors; 2. designed, through the inclusion of a proposed private bus service on a Sunday, 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; and 3. the provision of the private bus service on a Sunday would be further confirmed through the imposition of a condition of consent requiring the provision of a bus service on a Sunday and also requiring that this be subject to contractual engagement of a bus company to provide the service.
The Applicant's written request also stated that the Proposed Development would achieve the objectives of the R2 zoning of the Subject Site (see above at [43(1)(b)]) because: 1. it would provide accommodation that would meet the housing needs of the community within a low density environment, consistent with the first of the zone objectives; 2. the second of the zone objectives is not applicable to the proposed Development as it does not seek to provide facilities or services to meet the day to day needs of the community; 3. the form of the Proposed Development is consistent with the scale and character of surrounding residential development, noting that the development presents as a two storey development to both of its frontages on Beaconsfield Road and Greville Street, consistent with the third of the zone objectives; 4. the Applicant's statement of environmental effects had confirmed that Proposed Development, as amended, would retain and enhance residential amenity, including views, solar access, aural and visual privacy, and landscape quality in area, which I note was confirmed by the Parties expert planners who were agreed on this matter, in satisfaction of the R2 zone's fourth objective; 5. the Subject Site does not contain a heritage item and is not within a heritage conservation area, and so the fifth of the R2 zone objectives has no relevance to the Proposed Development; and 6. the Proposed Development includes the provision of solar panels that will assist in achieving self-sufficiency in energy, and will not compromise any food production, consistent with the sixth and final objective of the R2 zone.
As concerns the provisions of subcl 4.6(3)(b) of WLEP, the Applicant's written request stated that there were sufficient environmental planning grounds to justify the Applicant's non-compliance with the standard because: 1. the provision of a private bus service in place of the public transport service required by cl 26(2)(b)(iii) on a Sunday would provide a superior service to that which might be afforded by meeting the standard, as it would be a door to door service, with less likelihood of delay or cancellation compared to a public transport service; and 2. the provision of a private bus service would be a more secure service from a public health perspective in the current circumstances of the COVID-19 pandemic.
Having considered the Applicant's cl 4.6 written request to vary the development standard in cl 26(2)(b)(iii) of SEPP Seniors as it applies to the Proposed Development, as amended I have concluded that the request is well founded, and should be upheld, because: 1. compliance with the standard is unnecessary because the Proposed Development, including its proposed use of a private bus service on a Sunday to facilitate access by residents to facilities, achieves the objectives of the standard, and is therefore consistent with them, notwithstanding its non-compliance, in satisfaction of the provisions of cl 4.6(3)(a) of WLEP for reasons provided above (at [58]); 2. there are sufficient environmental planning grounds to justify the non-compliance with the standard in satisfaction of the provisions of cl 4.6(3)(b) of WLEP, for reasons provided above (at [60]); 3. the Proposed Development will be in the public interest because it is consistent with the objectives of the standard in cl 26(2)(b)(iii) of SEPP Seniors (see above at [58]) and with the objectives for development within the R2 zone in which the Proposed Development is to be carried out (see above (at [59]). 4. having considered the matters in cl 4.6(5) of WLEP, I am also satisfied that: 1. the contravention of the development standard in cl 26(2)(b)(iii) does not raise any matter of significance for State or regional environmental planning; and 2. there would be no public benefit of maintaining the development standard in cl 26(2)(b)(iii) of SEPP Seniors in the circumstances of this case; and 3. there would be no other matters required to be taken into consideration by the Planning Secretary before granting concurrence. 1. there is no need for the Court to seek the concurrence of the Planning Secretary, as the relevant matters requiring my consideration under the provisions of cl 4.6 of WLEP have been so considered.

Is the Applicant's written request to vary the height development standard under cl 40(4)(b) of SEPP Seniors well founded?

Clause 40(4)(b) of the Seniors SEPP requires a building adjacent to a boundary must not be more than two (2) storeys in height and the Section Drawing (DA 3100) confirms that the building that fronts Beaconsfield Road contains a three (3) storey element, in contravention of this standard.
The Applicant has provided a written request, pursuant to the provisions of cl 4.6 of WLEP (see above at [43(4)]), seeking to vary the development standard in cl 40(4)(b) of SEPP Seniors (see above at [41]) and the request states that the variation to the standard is justified for the following merit reasons: 1. the buildings in the Proposed Development, including that fronting Beaconsfield Road, appear as two (2) storey dwellings from the street and are in character with the locality; 2. the non-compliance in built form does not lead to any adverse or unreasonable impacts to the surrounding neighbours and locality; 3. the building that contravenes the standard nevertheless complies with the HoB development standard of 8m applicable to development on the Subject Site and therefore is not excessive in terms of scale and is not out of character for the locality; and 4. the building does not present an abrupt change in the scale of development in the area when viewed from the street.
I have already addressed the application of the provisions in cl 4.6 of WLEP to development standards in SEPP Seniors (see above at [54] and [55]), and its application more generally to an applicant's request to vary a development standard to which cl 4.6 applies (see above at [57].
I am satisfied that cl 40(4)(b) of SEPP Seniors is a development standard, that is open to being varied through a written request pursuant to cl 4.6 of WLEP for the same reasons as have been previously identified in relation to its application to cl 26 of SEPP Seniors.
Further, and consistent with the approach adopted to the request to vary the standard in cl 26 of SEPP Seniors, I am satisfied the provisions of cl 40 of SEPP Seniors serve the objective of Ch 3 of that instrument, as provided in cl 14 (see above at [37]).
The Applicant's written request also identifies that cl 40(4)(b) of SEPP Seniors includes a note that states that the purpose of the standard in that clause is to avoid an abrupt change in the scale of development in the streetscape, which it also considered, and I agree does constitute, an objective of the standard.
The Applicant's written request sets out the terms of cl 4.6 of WLEP and cl 40(4)(b) of SEPP Seniors, and states, relying on the first of the pathways in Wehbe (see above at [51(1)]), that the Proposed Development achieves the objectives of cl 40(4)(b) because: 1. in relation to the objective in the note that forms part of cl 40 of SEPP Seniors, the element of the Proposed Development that is in breach of the standard is at the rear, northern portion of the proposed townhouses T1 and T2, and, as previously noted (see above at [63]): 1. the buildings in the Proposed Development, including that fronting Beaconsfield Road containing proposed dwellings T1 and T2, appear as two (2) storey dwellings from the street and are compatible with the character of the locality; 2. the building that contravenes the standard nevertheless complies with the HoB development standard of 8m applicable to development on the Subject Site and therefore is not excessive in terms of scale and is not out of character for the locality; and 3. the building does not present an abrupt change in the scale of development in the area when viewed from the street; 1. in relation to the objective as set out in cl 14 of SEPP Seniors: 1. the cl 4.6 written request notes that the design of the Proposed Development, and in particular its non-compliance with the standard in cl 40(4)(b) of SEPP Seniors: 1. is for the purpose of accommodating car parking spaces while providing 2 levels of accommodation for future occupants; 2. does not lead to any adverse or unreasonable impacts to the surrounding neighbours and locality; 1. as a consequence of the factors discussed above at [(a)], I am satisfied that the non-compliant elements of the Proposed Development achieve the objective as it will: 1. facilitate improved car parking for residents and/or visitors and so providing a development that is designed both for seniors who are independent, mobile and active as well as those who are frail, and other people with a disability, regardless of their age, 1. the Proposed Development will achieve the objective while remaining compliant with the other HoB development standards applicable to the Subject Site in cl 4.3 of WLEP and subcll 40(4)(a) and (c) of SEPP Seniors.
The Applicant's written request also stated that the Proposed Development would achieve the objectives of the R2 zoning of the Subject Site for the reasons provided above (at [59]), which also apply to the Applicant's request to vary the development standard in cl 40(4)(b) of SEPP Seniors.
As concerns the provisions of subcl 4.6(3)(b) of WLEP, the Applicant's written request stated that there were sufficient environmental planning grounds to justify the Applicant's non-compliance with the standard in cl 40(4)(b) of SEPP Seniors because: 1. the Subject Site includes a natural fall from south to north and the design of the parking in proposed townhouses T1 and T2 is responsive to this site typography; 2. the Proposed Development otherwise achieves: 1. compliance with the other HoB development standards in cl 4.3 of WLEP and subcll 40(4)(a) and (c); 2. compliance with the applicable side and rear setback controls in WDCP (see above at [44]).
Having considered the Applicant's cl 4.6 written request to vary the development standard in cl 40(4)(b) of SEPP Seniors as it applies to the Proposed Development, as amended, I have concluded that the request is well founded, and should be upheld, because: 1. compliance with the standard is unnecessary because the Proposed Development, including its proposed three storey built form at the rear of proposed townhouses T1 and T2, achieves the objectives of the standard, and is therefore consistent with them, notwithstanding its non-compliance, in satisfaction of the provisions of cl 4.6(3)(a) of WLEP for reasons provided above (at [68]); 2. there are sufficient environmental planning grounds to justify the non-compliance with the standard in satisfaction of the provisions of cl 4.6(3)(b) of WLEP, for reasons provided above (at [70]); 3. the Proposed Development will be in the public interest because it is consistent with the objectives of the standard in cl 40(4)(b) of SEPP Seniors (see above at [68]) and with the objectives for development within the R2 zone in which the Proposed Development is to be carried out (see above (at [69]). 4. having considered the matters in cl 4.6(5) of WLEP, I am also satisfied that: 1. the contravention of the development standard in cl 40(4)(b) does not raise any matter of significance for State or regional environmental planning; and 2. there would be no public benefit of maintaining the development standard in cl 40(4)(b) of SEPP Seniors in the circumstances of this case; and 3. there would be no other matters required to be taken into consideration by the Planning Secretary before granting concurrence. 1. there is no need for the Court to seek the concurrence of the Planning Secretary, as the relevant matters requiring my consideration under the provisions of cl 4.6 of WLEP have been so considered.

Is the Applicant's written request to vary the FSR development standard under cl 50(b) of SEPP Seniors and cl 4.4 of WLEP well founded?

Clauses 50(b) of SEPP Seniors and cl 4.4 of WLEP provide FSR development standards applicable to development on the Subject Site, as follows: 1. clause 50 provides that a consent authority must not refuse consent to a development application made pursuant to Ch 3 of SEPP Seniors for the carrying out of development for the purpose of a self-contained dwelling on grounds including if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less; and 2. clause 4.4 of WLEP requires that the Proposed Development should not have a FSR in excess of 0.4:1.
The Proposed Development, as amended, has reduced the FSR of the Proposed Development from 0.684:1 to 0.56:1, but the FSR remains non-compliant with the provisions of cl 4.4 of WLEP, and exceeds the 'must not refuse' provision of cl 50(b) of SEPP Seniors.
The Applicant has provided, for an abundance of caution, a written request, pursuant to the provisions of cl 4.6 of WLEP (see above at [39(4)]), seeking to vary the development standards in cl 50(b) of SEPP Seniors and cl 4.4 of WLEP.
The Parties' expert planners have opined that the variation to the FSR development standards is justified for the following merit reasons: 1. the proposed dwellings to the rear of the Subject Site (identified as buildings V1 and V2) had been reduced from two (2) storey to one (1) storey and are of an acceptable bulk and scale; 2. the setback between proposed dwelling V2 and the western boundary of the Subject Site has been increased from 900mm to 4.0m, which the planners consider acceptable; 3. the setback distance between the façade of dwellings V1 and V2 and the northern boundary of the Subject Site has been increased from 6.0m to 7.5m, which the Parties expert planners consider acceptable; and 4. taken together, these changes have resulted in an acceptable bulk and scale that does not have an unreasonable adverse impact to surrounding neighbours.
I note that the development standard within cl 50(b) of SEPP Seniors is a 'must not refuse' standard and I am satisfied that, notwithstanding the Proposed Development's exceedance of its 0.5:1 FSR 'must not refuse' provision, a written request pursuant to cl 4.6 of WLEP is not required for the purpose of varying this clause.
In relation to the provisions of cl 4.4 of WLEP, the Applicant drew the Court's attention to the findings of Moore J in Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130 (referred to hereafter as 'Eastern Suburbs') in which His Honour confirmed, following the judgment of McColl JA in Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 ('Hastings Point') (at [1] to [10]), the appropriate pathway to address the exceedance of a FSR development standard in a local environmental plan (LEP), in relation to a seniors living development made pursuant to SEPP Seniors.
In Hastings Point, Moore J determined that there was no need for a successful written request relying on the provisions of cl 4.6 of a LEP that had been made pursuant to the Standard Instrument - Principal Local Environmental Plan (2006 EPI 155a), which in Hastings Point was the Waverley Local Environmental Plan 2012 (Waverley LEP), to dispense with a FSR development standard set by that LEP.
His Honour noted his satisfaction that, on what he said was "a proper analysis of the decision in Hastings Point", the inevitable conclusion to be reached is that a cl 4.6 request is unnecessary because (as he had noted at [99] of the judgment) the relevant clauses of the applicable LEP were not engaged as SEPP Seniors, by virtue of its overriding provision in cl 5(3), should be regarded as ousting the necessity for a successful request pursuant to the provisions of cl 4.6.
Following His Honour's reasoning in Eastern Suburbs, and adopting the form of his conclusion (at [109]) in that judgement, I conclude, for the reasons set out by His Honour in Eastern Suburbs (at [102] to [108]), that there is no necessity for the Applicant in this appeal to rely on a successful request pursuant to cl 4.6 of WLEP to approve a development which does not otherwise comply with the or FSR development standard derived from cl 4.4 of WLEP.
Notwithstanding this conclusion, I note that, as discussed above at [80], while the Applicant's written request to vary the FSR development standard in either cl 50(b) of SEPP Seniors or cl 4.4 of WLEP is not required, I would, nevertheless, be satisfied that: 1. the merit reasons provided by the Applicant above (at [75]) would be sufficient to justify the FSR exceedance of the Proposed Development, were that required to be the basis for assessment of the Proposed Development's FSR exceedance under cl 50(b) of SEPP Seniors; and 2. the Proposed Development does achieve what I consider to be the objective of cl 50(b) of SEPP Seniors, which consistent with my consideration of the Applicant's two previous requests to vary development standards in SEPP Seniors, is the objective of Ch 3 of SEPP Seniors set out in cl 14 of the SEPP.
For completeness, and in the unlikely event that my conclusion above (at [80]) following Moore J in Eastern Suburbs is wrong, I will undertake an assessment of the Applicant's written request to vary the development standard in cl 4.4 of WLEP.
The Applicant's written request to vary the FSR development standard under cl 4.4 of WLEP has considered whether Proposed Development would achieve the objectives of that standard (see above at [43(3)]), and states, relying on the first of the pathways in Wehbe (see above at [47(1)]), that the Proposed Development would achieve the objectives that standard because: 1. in relation to the first objective at cl 4.4(1)(a): 1. the Proposed Development complies with the HoB development standards of 8m in subcl 40(4)(a) and (c), and 8.5m in cl 4.3 of WLEP, and with the minimum landscaped area standard in cl 50(c)(ii) of SEPP Seniors, confirming that the Proposed Development will be carried out in accordance with the environmental capacity of the land; and 2. the Proposed Development will be carried out in accordance with the objectives of the R2 zoning of the Subject Site for reasons provided below (at [84]); 1. in relation to the second objective at cl 4.4(1)(b), the Proposed Development would limit traffic generation because: 1. it complies with the 'must not refuse' development standard at cl 50(h) of SEPP Seniors, as it provides 0.5 car spaces for each bedroom in circumstances where the Applicant's development application is made by a person other than a social housing provider; and 2. the Applicant's expert traffic engineer had demonstrated, and the Respondent agreed, that it would not have unacceptable implications for the local road network capacity; 1. in relation to the third objective at cl 4.4(1)(c), the Proposed Development would not give rise to any impacts on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion because, inter alia, it includes a single storey dwelling in the rear 25% of the Subject Site and is compliant with the HoB development standards in subcll 40(4)(a) and (c) in SEPP Seniors and cl 4.3 of WLEP; 2. in relation to the fourth objective in cl 4.4(1)(d), the bulk and scale of the Proposed Development is suited the land use purpose and objectives of the zone for reasons already provided above (at [(1)]) and below (at [84]); 3. in relation to fifth through ninth objectives at cl 4.4(1)(e) to (i), these objectives are of no relevance to the Proposed Development; 4. in relation to the tenth objective at cl 4.4(1)(j), the Proposed Development includes the consolidation of the two lots at 99 Beaconsfield Road and 22B Greville Street, consistent with this objective; 5. in relation to the eleventh objective at cl 4.4(1)(k), the objective is not applicable to the Proposed Development as it is not for the purposes of either community facilities or affordable housing or the conservation of a heritage item.
The Applicant's written request also stated that the Proposed Development would achieve the objectives of the R2 zoning of the Subject Site for the reasons provided above (at [59]), which also apply to the Applicant's request to vary the development standard in cl 4.4 of WLEP.
As concerns the provisions of subcl 4.6(3)(b) of WLEP, the Applicant's written request stated that there are sufficient environmental planning grounds to justify the Applicant's non-compliance with the standard in cl 4.4 of WLEP because: 1. the Proposed Development includes the amalgamation of two lots for the purposes of a single development; 2. the proposed amalgamation of the two lots constituting the Subject Site reduces the requirements for setbacks between what might otherwise be required for separate seniors living developments on each of the lots; 3. the reduced requirements for setbacks within the Subject Site permits the inclusion of a higher FSR and increased boundary setbacks than would be achievable under separate developments on each lot; 4. the additional FSR provided by the Proposed Development does not give rise to any unreasonable impacts on adjoining properties.
Having considered the Applicant's cl 4.6 written request to vary the development standard in cl 50(b) of SEPP Seniors and cl 4.4 of WLEP as it applies to the Proposed Development, as amended I have concluded that the request is well founded, and should be upheld, because: 1. compliance with the standard is unnecessary because the Proposed Development, including its non-compliance with the FSR developments standards in cl 50(b) and cl 4.4, achieves the objectives of the standard in cl 4.4, and is therefore consistent with them, notwithstanding its non-compliance, in satisfaction of the provisions of cl 4.6(3)(a) of WLEP for reasons provided above (at [80]); 2. there are sufficient environmental planning grounds to justify the non-compliance with the standard in satisfaction of the provisions of cl 4.6(3)(b) of WLEP, for reasons provided above (at [85]); 3. the Proposed Development will be in the public interest because it is consistent with the objectives of the standard in cl 4.4 of WLEP (see above at [(1)]) and with the objectives for development within the R2 zone in which the Proposed Development is to be carried out (see above (at [84]); 4. having considered the matters in cl 4.6(5) of WLEP, I am also satisfied that: 1. the contravention of the development standard in cl 4.4 does not raise any matter of significance for State or regional environmental planning; and 2. there would be no public benefit of maintaining the development standard in cl 40(4)(b) of SEPP Seniors in the circumstances of this case; and 3. there would be no other matters required to be taken into consideration by the Planning Secretary before granting concurrence. 1. there is no need for the Court to seek the concurrence of the Planning Secretary, as the relevant matters requiring my consideration under the provisions of cl 4.6 of WLEP have been so considered.

Conclusion in relation to the Applicant's written requests to vary development standards

As noted above (at [45]), the Applicant has proposed that the Proposed Development's non-compliance with applicable access, height and FSR development standards is justified and I have concluded that these non-compliances are acceptable because: 1. the Applicant's cl 4.6 written request to vary the access development standard in cl 26(2)(b)(iii) of SEPP Seniors as it applies to the Proposed Development, as amended, is well founded, and should be upheld for reasons provided above (at [61]); 2. the Applicant's cl 4.6 written request to vary the HoB development standard in cl 40(4)(b) of SEPP Seniors as it applies to the Proposed Development, as amended, is well founded, and should be upheld, for reasons provided above (at [71]); 3. while I am satisfied that the Applicant's written request pursuant to cl 4.6 of WLEP to vary the FSR development standard in cl 50(b) of SEPP Seniors and cl 4.4 of WLEP is not required, as noted above (at [81]) I am also satisfied that: 1. the merit reasons identified by the Parties' expert planners (see above at [75]) would be sufficient to justify the FSR exceedance of the Proposed Development, were that required to be the basis for assessment of the Proposed Development's FSR exceedance; and 2. the Proposed Development achieves the objective of cl 50(b) of SEPP Seniors as provided in cl 14 of the SEPP; and 1. if it were required, I am satisfied that the Applicant's cl 4.6 written request to vary the FSR development standard in cl 4.4 of WLEP as it applies to the Proposed Development, as amended, is well founded, and should be upheld in relation to cl 4.4 of WLEP, for reasons provided above (at [86]);
As I have confirmed that the Applicant's requests to vary the development standards in cll 26(2)(b)(iii), 40(4)(b) and 50(b) of SEPP Seniors, and, if required, the request to vary cl 4.4 of WLEP are all well founded, the related pre-conditions required to enliven the Court's powers to grant consent are satisfied, and I am able to undertake consideration of the remaining contentions in the appeal.

Remaining contentions resolved

The remaining contentions in the appeal were identified above (at [25]) and resolution of those contentions requires the Court to consider the following questions: 1. does the Proposed Development provide for the manoeuvrability and access of vehicles on the Subject Site in satisfaction of the provisions of Part C4 of WDCP? 2. has the Applicant provided the information required to satisfy the provisions of Part C5 of WDCP and Australian Standard AS3500.3 in relation to water management and stormwater drainage? 3. are the Applicant's proposed footpath works acceptable, and has it provided the required cross and long sections of proposed footpath works?; and 4. is approval of the Proposed Development in the public interest?

Does the Proposed Development provide for the manoeuvrability and access of vehicles on the Subject Site in satisfaction of the provisions of Part C4 of WDCP?

The Parties' expert traffic engineers, Mr Varga, for the Applicant, and Mr Bazergy, for the Respondent, addressed this remaining contention within their joint expert report tendered as evidence at the hearing, and agreed that: 1. the Applicant's revised plans (drawings DA2000 and DA 3103B, both Rev F and dated 14/9/21), and accompanying by swept turning path diagrams for the car spaces accessed via Beaconsfield Road, resolve the contentions concerning these car parking spaces; 2. the Applicant's revised plans (drawings DA2000 and DA 3103B, both Rev F and dated 14/9/21), and accompanying by swept turning path diagrams for the garages accessed via Greville Street, along with the imposition of an agreed condition of consent to increase the width of a vehicular crossing from 4.5m to 5.5m, resolves the contentions concerning these car parking spaces; and 3. the following condition of consent, referred to above (at [(2)]), should be imposed with any grant of consent to the Proposed Development: "The width of the vehicular crossing between the gutter and the property boundary should be increased from 4.5m to 5.5m, and the width of the common driveways serving the two individual garages be increased to suit."
The expert traffic engineers also noted that the internal driveway grades off Greville Street are the subject of plans and details to be provided separately for consistency with public domain and footpath works, and Council requirements.
On the basis of the agreed evidence provided by their expert traffic engineers, the Parties agreed, and I accept, that this remaining contention, concerning the manoeuvrability and access of vehicles on the Subject Site, is resolved.

Has the Applicant provided the information required to satisfy the provisions of Part C5 of WDCP and Australian Standard AS3500.3 in relation to water management and stormwater drainage?

The Parties' expert stormwater engineers, Mr Bruce Kenny, for the Applicant, and Mr Joseph Bazergy, for the Respondent, addressed this remaining contention concerning stormwater management in their joint expert report tendered as evidence at the hearing, and agreed that: 1. an easement is required to drain stormwater from the Subject Site to a lawful point of discharge; 2. the easement details depicted in the Applicant's supplementary stormwater management plans reference CC200115, sheets C1 to C10 Rev C and dated 21/9/21, including easement option summary plan reference CC002002115 sheet C9 Rev G dated 21/9/21, demonstrate that an easement over the properties known as 24 Greville Street and 3 Cowell Crescent will provide an acceptable engineered outcome, and the contention concerning this matter would be resolved though imposition of appropriate deferred commencement conditions requiring the acquisition of an easement; 3. the details depicted in the Applicant's supplementary stormwater management plans reference CC200115, sheets C1 to C10 Rev C and dated 21/9/21, demonstrate that the Applicant's development application would meet the relevant stormwater requirements of Part C.5 of WDCP and AS3500.3; and 4. the contentions concerning this matter are resolved subject to the imposition of appropriate conditions of consent.
On the basis of the agreed evidence provided by their expert stormwater engineers, the Parties agreed, and I accept, that this remaining contention, concerning water management and stormwater drainage, is resolved.

Are the Applicant's proposed footpath works acceptable, and has the Applicant provided the required cross and long sections of proposed footpath works?

The Parties' expert stormwater engineers, Mr Bruce Kenny, for the Applicant, and Mr Joseph Bazergy, for the Respondent, also addressed this remaining contention concerning the acceptability of the Applicant's proposed footpath works, and agreed that: 1. the details depicted on the Applicant's footpath assessment plans reference CC200115 sheets G1 to G16, Rev E dated 23/9/21, and the amended details to those plans in drawing no. SK10 Rev B dated 23/9/21, would address the requirements of this contention and would be resolved through the imposition of appropriate conditions of consent; and 2. the design of footpath works as depicted in plan document reference CC200115 sheet SK10 Rev B dated 23/9/21, prepared by ACOR Consultants (CC) Pty Ltd: 1. has been prepared having due regard to the crossfall requirements within the footpath reserve, sight distance requirements and vehicular driveway gradients in accordance with the requirements of AS2890.1; and 2. will meet the relevant requirements of AS2890.1; and 3. the proposed footpath alignment and transition grades east of the driveway can be resolved through the imposition of appropriate conditions of consent.
On the basis of the agreed evidence provided by their expert stormwater engineers, the Parties agreed, and I accept, that this remaining contention, concerning the Applicant's proposed footpath works, is resolved.

Is approval of the Proposed Development in the public interest?

As noted above at [15] and [16], the Applicant's development application had been notified between 15 October and 5 November 2020, and the Respondent received 50 submissions in response to that notification. Further, the Applicant's amended plans were notified between 6 and 27 August 2021, and 26 submissions were received by the Respondent in response to that notification.
Also as noted above (at [17]), at the commencement of the hearing oral submissions were provided by six objectors, and the matters raised by them were identified above (at [18]).
Within the joint report of the Parties' expert planners, Mr Moody and Mr Nguyen had agreed that: 1. the notification of the Applicant's Proposed Development, as amended, did not raise any planning related contentions that required further assessment by the expert planners beyond those identified as contention in the appeal; 2. all planning matters of concern raised in objector submissions have been resolved by way of the Applicant's further amended proposal; and 3. the other issues raised in objector submissions have been resolved to my satisfaction through the agreements of the Parties' expert traffic engineers and stormwater engineers.
I have also previously noted, in the context of the Applicant's written requests to vary the development standards in cll 26(2)(b)(iii), 40(4)(b) and 50(a) of SEPP Seniors and cl 4.4 of WLEP (at [61(3)], [71(3)] and [86(3)]), and consistent with the provisions of cl 4.6(4) of WLEP, that the Proposed Development will also be in the public interest because the Proposed Development is consistent with: 1. the objectives of those particular standards; and 2. the objectives for development within the R2 zoning of the Subject Site zone in which the Proposed Development is to be carried out.
Consequently, I am satisfied that approval of the Applicant's Proposed Development is in the public interest.

Conclusion in relation to remaining contentions in the appeal

As a consequence of the conclusions above (at [92], [94], [96] and [101]), the remaining contentions in the appeal are resolved and, subject to the satisfaction of any remaining jurisdictional matters, the Applicant's development application for a seniors living development on the Subject Site should be approved.

Remaining jurisdictional matters

I have already addressed (see above at [87]) the jurisdictional pre-requisites in relation to the Proposed Development's non-compliance with certain development standards and have confirmed that these have been satisfied through the Applicant's provision of three written requests to vary those standards, each of which I have found to be well founded and should be upheld.
The Parties' expert planners have also addressed remaining jurisdictional matters within their joint report tendered as evidence at the hearing, in which they agree, and I am satisfied, that: 1. the Applicant has satisfied all jurisdictional requirements of SEPP Seniors, including satisfaction of all development standards within Ch 3 concerning development for the purposes of seniors living; 2. the Applicant has provided a BASIX certificate (No. 1114362M_02 dated 26 September 2021) in satisfaction of the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 3. the Subject Site has been used historically for residential purposes, and no change to its residential use is proposed by the Applicant. Further, the Respondent has confirmed that it does not hold any record of the Subject Site that would suggest that it has ever been used for a purpose that would give rise to contamination of the land, and the Parties are satisfied, and I agree, that the Proposed Development is compliant with the provisions of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55); 4. the Subject Site is located within the Sydney Harbour catchment, as defined within cl 3 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP (SHC)), and the Proposed Development, as amended, is consistent with the planning principles in cl 13 of SREP (SHC); 5. the Proposed Development, as amended, does not give rise to any matters of relevance in relation to State Environmental Planning Policy (Infrastructure) 2007.
Consequently, I am satisfied that all relevant jurisdictional matters have been addressed and the Court's powers to grant consent to the Applicant's development application are enlivened.

Other matters

In relation to the Applicant's amended plans, the Court notes that Willoughby City Council as the relevant consent authority agreed, under cl 55(1) of the EP&A Regulation, to the Applicant amending the development application DA-2020/240, as to rely on plans tendered at the hearing on 27 September 2021.
At the conclusion of the hearing the Court directed: 1. the Respondent, Willoughby City Council, as the relevant consent authority, to lodge the amendment to development application DA-2020/240 on the NSW planning portal within 7 days of the date of this order and notify the Applicant and the Court after it has been lodged; 2. the Applicant to file a copy of the amended development application within 7 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal.
The Parties have confirmed that they have complied with these directions on 30 September 2021 and, consequently, the appeal can be finalised.
In the event that these directions were complied with, the Applicant had agreed to pay the Respondent's costs thrown away pursuant to the provisions of s 8.15(3) of the EP&A Act, as a result of the amendment to the development application in the sum of $1,000.
The Parties were also directed to file agreed conditions of consent with the Court. These conditions were filed on 13 October 2021 and reflect the findings in this judgment. Consequently, I am now able to make final orders to dispose of the appeal.

Orders

The Court orders: 1. the Applicant is to pay the Respondent's costs thrown away as a consequence of amendments made to its development application, as uploaded to the NSW Planning Portal on 30 September 2021, pursuant to the provisions of s 8.15(3) of the EP& A Act, in the sum of $1,000, within 4 weeks of the date of this judgment; 2. the Applicant's written requests pursuant to cl 4.6 of WLEP to vary the development standards in cll 26(2)(b)(iii) and 40(4)(b) of SEPP Seniors are upheld; 3. the appeal is upheld; 4. Development Application DA-2020/240, as amended, for the demolition of existing structures and construction of a seniors living development consisting of six self-contained dwellings, car parking, and removal of eight trees, at 99 Beaconsfield Road and 22B Greville Street, in Chatswood, is determined by the grant of consent, subject to the conditions at Annexure 'A'; 5. the exhibits are returned except exhibits A, B and 6. …………………………..

Commissioner of the Court (Annexure A) (315325, pdf)

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 January 2022

(2007) 156 LGERA 446

At a glance

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Decision date

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Judgment (27 paragraphs)

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Cases Cited (8)