Thomson v Northern Beaches Council

Land and Environment Court (NSW)|2021-12-07|Before: Group Architects P

Judgment

COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Northern Beaches Council's refusal of Development Application No. DA2020/1162.
The development site is at 27 Bellevue Road Avalon, which is legally described as Lot 33 DP 11462. The proposal before the Court, subsequent to certain amendments agreed by Northern Beaches Council (Council) under cl 55 (1) of the Environmental Planning and Assessment Regulation 2000, involves site preparation works including certain tree removal and construction of an in-fill seniors living development containing three self-contained housing units with basement parking, along with hard and soft landscape treatment.
The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 December 2021, and at which I presided. Following the conference, the parties came to an agreement on the terms of a decision in the proceedings that would be acceptable to the parties.
This decision involved the Court upholding the appeal and granting development consent to the development application subject to agreed conditions.
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.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

The proposal comprises three "self-contained dwellings" as described at cl 13(1) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP (HSPD)). The proposal is permissible, under Chapter 3 of SEPP (HSPD) given the site's residential zoning (see [24]).
Chapter 3 of SEPP (HSPD) also establishes a number of criteria for self-contained dwellings as proposed with the subject application. The proposal meets the site-related requirements of Part 2 of Chapter 3 in that: 1. In relation to access to facilities, I accept the advice of the jurisdictional statement, appropriately cross-referenced via expert reports, and I am satisfied that all of the relevant facilities and services referred to in cl 26 are within 400m of the site and are accessible (with some proposed modifications of the footpath referred to in the plans) by a suitable access pathway. 2. Clause 27 provisions are not called up as the site is not bush fire prone land. 3. I am satisfied in regard to cl 28 provisions in that the site is already connected to a reticulated water system and has adequate facilities for the removal or disposal of sewage. 4. Clause 29 requires a consent authority to "take into consideration" certain issues otherwise associated with site compatibility certificates (referenced at cl 25(5)(b)). The relevant provisions, which draw attention to impact on the existing natural environment and existing land uses, are at subcll 25(5)(b)(i), (iii) and (v). I have taken these factors into consideration, assisted by the written documentation accompanying the application as amended.
The design requirements of Part 3 of Chapter 3 of SEPP (HSPD) are met in that: 1. I am satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with cl 30. This is clear from the statement of environmental effects prepared for the application, most recently filed with the Court on 6 December 2021 (reference folio 339 behind Tab 7 of the applicant's bundle filed that date). 2. In regard to cl 31, I have reviewed and taken into consideration the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004. This was facilitated by material supplied in an addendum statement of environmental effects dated 30 September 2021 (part of the bundle filed with the court on 6 December 2021). 3. In regard to cl 32, I agree with the position of the parties that the proposal as amended demonstrates adequate regard has been given to the principles set out in Division 2 of SEPP (HSPD), which address: neighbourhood amenity and streetscape, visual and acoustic privacy, solar access and design for climate, stormwater, crime prevention, accessibility and waste management. Again, the addendum statement of environmental effects dated 30 September 2021 was of assistance in that regard.
I accept the numerical particulars provided in the jurisdictional statement which indicate that the development standards included at Part 4 of Chapter 3 of SEPP (HSPD) are met, with the exception of the provisions at cl 40(4)(c) concerned with the height in storeys of a building located in the rear of the site. There are permissive powers allowing the granting of consent for a development despite the contravention of that particular development standard, which involve certain preconditions, which I give consideration to immediately below.

Consideration of contravention of development standard

Clause 40(4)(c) of SEPP (HSPD) applies in this instance as residential flat buildings are not permitted within the zone upon which the development is proposed. Clause 40(4)(c) essentially provides that: …a building located in the rear 25% area of the site must not exceed 1 storey in height.
The proposed development seeks consent for development that would breach the one storey limit within part of the rear 25% of the site.
The permissive powers at cl 4.6(2) of Pittwater Local Environmental Plan 2014 (PLEP) apply here, even though the contravention is related to SEPP (HSPD) (Ku-ring-gai Council v Pathways Property Groups Pty Ltd [2018] NSWLEC 73 [91]).
To open the gate to the application of these permissive powers, mindful of cl 4.6(3) of PLEP, the Applicant has filed a written request seeking to justify the contravention of the development standard at cl 40(4)(c) of SEPP (HSPD). The written request was prepared by Planning Ingenuity (written request).
I have considered the written request. I am satisfied that it demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (PLEP cl 4.6(3)(a)). In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) Preston CJ nominated a series of "ways" that it might be demonstrated that compliance with a development standard would be unreasonable or unnecessary. The written request follows the first Wehbe "way", seeking to demonstrate that in the circumstances of this proposal the objectives of the standard are achieved notwithstanding the contravention. While there are no specific objectives nominated for the development standard at cl 40(4)(c) of SEPP (HSPD), the written request reasonably turns to a finding of the Court on the interpretation of the objective of this provision (in essence). Commissioner Murrell in Winter Group Architects P/L v Ku-ring-gai C [2005] NSWLEC 546 (Winter Group Architects) at [10] found that: "…In terms of the objectives of the standard for the 25% it is clear that the objectives are to control impacts on adjoining neighbours to ensure that the proposed development is not overbearing in terms of bulk, scale and height and also in terms of overshadowing impacts and privacy concerns."
The written request demonstrates to my satisfaction, through its identification of the relatively small scale of the contravention and the particulars of the rear boundary relationships with neighbours, that the objective nominated at Winter Group Architects [10] is achieved with the proposal. That is, that the proposal is not overbearing in terms of its bulk scale, height or in regard to its overshadowing or privacy impacts.
I am also satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify the breach of the standard. This is through its demonstration of how the proposed design presentation and landscape treatment would minimise visual bulk, and present more as a single storey building. This explanation is coupled with a drawing out of a picture of the local context which includes existing two storey nearby development (to suggest the proposal would not "jar" in a visual sense). Other planning grounds are also supportive including the fact of the approximately 9m fall across the site and that there are no unreasonable amenity impacts brought about by this contravention.
For the reasons outlined above, I am satisfied that the Applicant's written request has adequately addressed the matters required to be demonstrated under cl 4.6(3) of PLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied.
I am also satisfied regarding cl 4.6(4)(a)(ii) of PLEP. That is, that the proposed development is in the public interest because it is consistent with: (1) the objectives for development within the applicable R2 zone, and (2) the objectives of the standard. In regard to the objectives of the standard I adopt the finding above at [16], where I consider the same question in light of the content of the written request. In regard to the objectives of the zone, I note it is the first objective that is particularly relevant here. It is clear that this proposal would play a role in providing for the housing needs of this community within the low density residential environment within which it would be located. I note as well that it is clear that the proposal is not antipathetic to the other two zone objectives.
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of PLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention. I find nothing of significance arises in regard to those matters.
The states of satisfaction required by cl 4.6 of the PLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of 40(4)(c) of SEPP (HSPD), relating to the building height at the rear.

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)

I accept the position of the parties that cl 7(1) of SEPP 55 is the provision of pertinence. I have considered whether the land is contaminated and accept the advice on the history of residential use of the site, and see the requirements of cl 7(1) have been satisfied.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The required Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and proposed consent conditions require compliance with this Certificate.

Pittwater Local Environmental Plan 2014

In regard to PLEP, I note the following matters of jurisdictional relevance: 1. The site is located within the R2 Low Density Residential zone. I have had regard to the zone objectives mindful of cl 2.3(2). 2. In regard to cl 7.1, and acid sulfate soils, I note that the site is identified as being within an acid sulfate soils Class 4 and 5 area. I accept the advice of the parties that development Consent is not required under cl 7.1 as the circumstances identified in subclause (2) are not triggered. 3. The provisions of cl 7.2 and earthworks, are triggered in this instance, especially given the basement parking. I have considered the matters listed at subclause (3), and the summary response and accept the agreed advice of the parties that appropriate responses are accommodated with the proposal and the various consent conditions. 4. The provisions of cl 7.7, are triggered in this instance, as the site is identified as "Geotechnical Hazard H2" on PLEP's Geotechnical Hazard Map. I have considered the matters listed in subclause (2) and accept the advice of the parties that I can be satisfied in regard to the matters at subclause (4). Here I note in particular that proposed Condition 12 requires certain recommendations of the Geotechnical Report prepared by Crozier Geotechnical Consultants dated October 2019 be incorporated into the construction plans, aimed at ensuring geotechnical risk is mitigated appropriately. 5. In regard to cl 7.10, I accept the advice of the parties that services essential for the development (including water, electricity, sewer, stormwater infrastructure and driveway access) are available to the property.

Other matters

While I have had regard to the evaluation provisions at cl 4.15 of the EPA Act, generally, I note the following further matters in particular: 1. Mindful of s 4.15(1)(a)(iii) of the EPA Act, the jurisdictional statement has drawn my attention to relevant provisions of Pittwater 21 Development Control Plan which applies in this instance. 2. Mindful of s 4.15(1)(d) of the EPA Act, the parties have taken me to the public submissions made in regard to the development proposal. That is, both those made after notification of the original proposal and those made following notification of the amended proposal which addressed a number of these submissions. I am satisfied that the requirement to give consideration to submissions has been met.

Conclusion

Based on the material outlined above, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In turn I am required to dispose of the proceedings in accordance with the parties' decision. I note that I have had no direct regard to the merits of the application in coming to this position.
In respect of the amendments to the application as originally filed, I would formally note: 1. Council, as the relevant consent authority for the purposes of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW), has agreed to the Applicant amending the development application no. DA2020/1162 (amended DA); 2. The amended DA has been uploaded to the NSW Planning Portal on 7 December 2021 and 9 December 2021; and 3. The Applicant has subsequently filed the amended DA with the Court on 9 December 2021.
The Court orders: 1. The request pursuant to clause 4.6 of the Pittwater Local Environmental Plan 2014 to vary the development standard in clause 40(4)(c) in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is upheld. 2. The Appeal is upheld. 3. Development Application DA2020/1162 for the construction of a seniors housing development to accommodate three (3) self-contained dwellings, including associated basement level car parking, landscaping and associated works on land legally described as Lot 33 in in DP11462 known as 27 Bellevue Road, Avalon is approved subject to the conditions set out in Annexure "A".

…………………… P Walsh Commissioner of the Court Annexure A (702451, 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: 15 December 2021

Environmental Planning and Assessment Regulation 2000(NSW)

(2007) 156 LGERA 446

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Judgment (11 paragraphs)

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