Trustees of the Sisters of the Good Samaritan v Warringah Council

Is the draft LEP immininent and certain? 48The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower , Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 49In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states : 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 50In our view, the questions to be answered are firstly, whether the draft LEP is imminent and certain and if so, what weight should the draft LEP be given in the consideration of the application. Secondly, and if it is found to be imminent and certain, whether the proposal will undermine the expressed future planning objectives in the draft LEP. 51On the question of whether the draft LEP is certain, we accept that the draft LEP is likely to be gazetted as it is well advanced in the plan making process. The experts agree that the preparation of the draft LEP is at an advanced stage. The difference in time of likely gazettal between Ms Fadeer and Mr Player is the end of June 2011 and around August 2011, respectively. Considering the time since the implementation of the draft LEP process (March 2007), even Mr Player's estimate must be regarded as imminent. 52The question of certainty centres on whether the site (and the Oxford Falls Valley area) will be a deferred matter or zoned E3 - Environmental Management. We do not accept Mr Player's evidence that the site may be given some other zoning under the draft LEP as there is no evidence to support this proposition. We accept that over the time, the potential zoning of the site in the draft LEP has been discussed between the council and the Department of Planning, however as the finalisation of the draft LEP has drawn closer, the evidence suggests that the site is likely to be zoned E3 - Environmental Management rather than deferred. We base this conclusion on the most recent e-mail from the Departmental of Planning, dated 31 May 2011 (Ms Juliet Grant, Regional Director, Sydney East) in response to an e-mail from the council (Mr David Kerr, Manager Strategic Planning) on the same day. 53The council's e-mail makes the following enquiry of the Department of Planning: From your e-mail and our discussions, my understanding is that the draft Warringah LEP is with Parliamentary Counsel's Office and will be sent on to the Director General for final endorsement with it anticipated that the LEP will be made by the end of June 2011. I also understand that the matters of the Brookvale and Oxford Falls Valley (in respect of which deferral has previously been contemplated) are no longer proposed to be deferred and zones for these areas will be included in the draft LEP in accordance with the exhibited version (ie, E3 for Oxford Falls Valley). I'd be grateful if you would confirm whether my understanding is correct 54The response from the Department of Planning states: David, that is certainly what we are working towards. But note that until they Minister has signed off on the dLEP, we cannot guarantee an outcome. 55Prior to this e-mail, other e-mail correspondence on 8 April 2011 between the Department of Planning (Ms Sabina Miller) and the council (Ms Noo Porima) supports this conclusion and states: This email is just to advise that land at Oxford Falls Valley, 638 Pittwater Road, Brookvale and the Brookvale Centre will now be included in the draft Warringah LEP 2011. Would it be possible to amend the maps to put those areas back into the Plan. 56From the evidence, we understand the reference to amending maps is a reference to the council including the site into the draft LEP as E3 - Environmental Management on the maps accompanying the draft LEP. 57From the evidence, we are satisfied that there is a high level of certainty that the site will be zoned E3 - Environmental Management consistent with council's intentions for the site and the wider Oxford Falls Valley. The council's position in relation to the site and the land within the Oxford Falls Valley is that it seeks to protect the natural features and values. 58In our opinion, the question of certainty is more critical than the issue of imminency in determining the weight that should be attributed to the draft LEP, particularly given the little differences in time frames provided by the experts. It would seem that the particular provisions of the draft LEP have greater bearing on the question of weight than when the draft LEP is finalised, subject of course to the finalisation being within a reasonable timeframe. 59The next question is whether the proposed development will, as stated in Blackmore Design (at 35), in general terms be inconsistent with the expressed future planning objectives for the area. As Seniors housing is a prohibited development within the zone, we accept that there is a potential inconsistency although this by itself is not a reason to refuse the application because of the savings provisions in cl 1.8A. Further guidance on this question can be obtained from the zone objectives for the E3 - Environmental Management, which are:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To ensure that development, by way of its character, design, location and materials of construction, use integrated into the site and natural surroundings, complements and enhances the natural environment and has minimal visual impact..
• To protect and enhance the natural landscape by preserving remnant bushland and rock outcrops and by encouraging the spread of indigenous tree canopy.
• To protect and enhance visual quality by promoting dense bushland buffers adjacent to major traffic thoroughfares. 60If the objectives for zone E3 - Environmental Management are considered collectively, the clear focus is protect and manage the natural qualities of the area but allow a limited range of developments that do not affect these natural qualities. The objectives also seek to "restore" and "enhance" the natural qualities of the area. If compared to the proposed development we can comfortably conclude that there is a fundamental inconsistency with the expressed future planning objectives for the area through the following:
• the proposed development is a prohibited use under the draft LEP,
• the natural qualities of the area, being its native vegetation and natural features, are unacceptably impacted on by the proposed development through the construction zone and the need to provide extensive APZs,
• the proposed development cannot "restore" and "enhance" the natural qualities of the area as the proposed landscaping is limited by the available area within the construction zone and the need to significantly reduce the native vegetation for the extensive APZs, and
• the proposed development will result in a dense urban form that is concentrated on one part of the site. 61If the weight to be given to the draft LEP is considered against its imminency, certainty and consistency with the expressed future planning objectives for the area, we are satisfied that the draft LEP should be given determinative weight and as the proposed development will be so inconsistent with the character envisaged by the draft LEP, the application should be refused for this reason alone. 62For completeness we will briefly deal with the other issues raised in the proceedings.

The existing and future character 63Clause 32 of SEPP 2004 provides that consent must not be granted unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles in Division 2. Clause 33(a) addresses Neighbourhood amenity and streetscape and states: The proposed development should: (a) recognise the desirable elements of the locations current character (or, in the case of precincts undergoing transition, the described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and 64Similar, but not identical questions are asked by cl 25(5)(b) and require a finding of compatibility with the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development (cl 25(5)(b)(i)) and the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development (cl 25(5)(b)(v)). 65Clause 33(a) requires consideration in two separate instances. Firstly, the location's current character and secondly, if the area is undergoing transition, the desired future character described in local planning controls. In this case we have found that the draft LEP is imminent and certain and it follows that the location is appropriately considered as a precinct undergoing transition. If the proposed development is considered against the desirable elements (or in this case, the objectives of the E3 - Environmental Management zone) we can comfortably conclude that the proposed development does not have adequate regard to the principle in cl 33(a) for the reasons mentioned in par 60. 66If we are incorrect in this approach, we propose to consider the application (as was done by the experts) against the B2 Locality as identifying the desirable elements of the locations current character. If considered under LEP 2000, there must be a positive finding of consistency with the B2 Locality for the application to be approved. 67The relevant components of the B2 Locality can be summarised as:

• future development will be limited to low intensity, low impact non-housing uses,
• no new development is to be located on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway,
• the natural landscape including landforms and vegetation will be protected and, where possible, enhanced,
• buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms, and
• development will ensure that ecological values of natural watercourses are maintained. 68The parties provided a range of expert evidence to address the different components of the B2 Locality, with some overlapping of the evidence on the different components.

The evidence - visual impact 69Expert evidence in relation to visual impact was provided from Dr Lamb for the applicant and Mr Powe for the council. Both describe the present character of the site as an intact remnant bushland area with an interface with the B8 Locality, which they describe as a low density residential development of detached and attached residences. They state the B2 Locality is predominantly natural bushland with pockets of development along roads, such as the Wakehurst Parkway, Oxford Falls Road, Willandra Road and Forest Way. They agree that the development is satisfactory with regard to the visual interface with Lady Penrhyn Drive and while visible from the B8 Locality and Narrabeen Lagoon, they consider it will not have significant amenity impacts or impacts on views. 70Both accept that the development is not on a ridgetop, however there are locations within the public and private domain of the visual catchment where, because of the viewing angle and topography, the development will be visible above part of the existing horizon. They conclude however, that from the majority of potential viewing locations, the development will not disrupt the existing horizon or skyline. They further agree that the removal of the vegetation in the APZ will increase the potential visibility of the site and the proposed buildings however the visibility of the proposed retaining walls will be minor and that the form and scale of the individual buildings are satisfactory. 71Dr Lamb accepts that the character of the development is different in detail to the surrounding low residential development however that difference would not be evident from other similar developments, both existing and proposed. In his opinion, the development is compatible with adjacent development. As the development is a permissible use, this provides a reasonable expectation that substantial visual differences will occur between the undeveloped and natural character of the existing site and its proposed future. Dr Lamb states that in the context of the B2 Locality, the development will have only a minor impact on the scenic qualities of the locality. 72Mr Powe expresses concern over the massing of the overall development built form. The plans indicate the close proximity of buildings to each other and the minimal set back of dwellings from the internal roadways. This results in little separation and presents the massing of built form, which will read as continuous from the surrounding residential areas to the east and north. This will be accentuated in the visual sense by the APZ requirements extending well past the built components of the proposal. The bushfire protection requirements significantly restrict the height and density of planting around the entire development area, and result in the exposure of the built form with little separation. The result in character of a development when viewed from the visible areas to the north and east will be one in which the built form is favoured over the existing natural landscape.

The evidence - low intensity and low impact/ natural vegetation 73Mr Player provided town planning evidence for the applicant and Mr Piggott for the council. The experts agree that the development involves 21,800 cu m of cut and 6,600 cu m of fill requiring an export of approximately 11,950 cu m of material off site. There was also agreement by the experts that all vegetation within the construction zone will be removed although new landscaping will be provided. The effectiveness of this new landscaping however was in dispute between the parties. 74Mr Player says that the visual character impact assessment should relate to the whole of the B2 Locality which is approximately 1,544ha and includes Beacon Hill and Frenchs Forest to the south; Narrabeen Lagoon and Elanora to the north; Cromer to the east; Belrose and Terrey Hills to the west and Oxford Falls and Garigal National Park towards the centre of the B2 locality. Applying this catchment, Mr Player concludes that the development is compatible with the surrounding land uses and that the proposal has been designed having regard to the opportunities and constraints of the natural and built environment of the site and its local context. 75Mr Player states that the existing character of the Oxford Falls Valley locality, as a whole, will remain substantially unchanged despite the construction of the development and that it is inevitable that development of the site for any purpose will involve a change in character when viewed from the immediate vicinity of the site. He states that the development, with a very low floor space ratio (FSR) of 0.059:1 will ensure it is low intensity in terms of density and scale. With 12.92ha or 74% of the total site retained as deep soil native planting areas, this will result in a development that will have minimal impacts on the natural environmental features of the site, particularly fauna and flora habitat areas and the natural stormwater drainage system that forms part of the Narrabeen Lagoon Catchment . 76Mr Player refers to the Biobanking Statement that has been issued by OEH which confirms that the development is not likely to significantly affect any threatened species or have any significant impacts on biodiversity values of the site and locality. He states that the development only involves the removal of 54 trees (as defined in the council's tree preservation i.e. trees over 5m in height and/or a canopy width of 10m) and the retention of 28 trees. The landscape concept plan provides for the planting of 205 new endemic trees, as well as a substantial number of shrubs and groundcover although he acknowledged that there will be thinning and removal of additional trees within the APZ management zones. 77In addition, Mr Player regards the development as being "low impact" in that it will retain and protect areas of significant rock outcrops and the hanging swamp within the site, minimise disturbance of native bushland vegetation and will blend in with the colours and textures of the natural bushland landscape character of the locality. 78Mr Piggot considers the visual extent of the development is unacceptable with a length around 400m, a width between 50-160m, located on an elevated plateau with surrounding APZ's as it will have significant and cumulative impacts on the visual catchment of the site. The proposal, in terms of area to be directly and indirectly impacted upon, is not compatible with the surrounding land uses. In his opinion, the bulk, scale, built from and character of the development will have an unacceptable impact on existing, approved and future uses of land in the vicinity of the development through the cumulative effect of the buildings, roads, site modification and vegetation removal. 79Mr Piggot claims the development does not accord with either the current or future character of the area as the desirable elements of the location's current character are to maintain the present character, only allowing new development, which is low impact and low intensity, whilst protecting the natural environment. He does not consider the development is low impact or low intensity or that it has been designed or grouped in areas so as to minimise disturbance of vegetation and landforms as it is necessary to modify some 4 ha of existing vegetation for the buildings and related infrastructure including roads (or 5 ha for the amended APZ). Mr Piggott considers that the direct modification of approximately 8.02ha (or 9 ha for the amended APZ) of the site, through the construction zone and the areas required for APZ, supports the council's contention that the development has significant and adverse environmental impacts. 80Mr Powe describes the development as a relatively standard residential development on a prominent and elevated site with sweeping views along the northern beaches designed to enable views to be provided from each dwelling. While Mr Powe considers that the individual building designs are acceptable, the massing of the overall development is unacceptable and will be viewed as having a character in which built form is favoured over the existing natural landscape and therefore, fails in terms of the DFC for the B2 Locality. Mr Powe considers that the development, which alters, in perpetuity, 50% of a large and prominent site comprised entirely of natural features does not meet the criteria of "low intensity, low impact" in relation to the natural environment and, in that context, is not compatible with the DFC for the B2 Locality. 81Mr Powe considers that the landscape plans do not provide sufficient planting commensurate with the collective building bulk or the natural attributes of the site and its surrounds as expected and required in the B2 Locality due to the need to address bushfire issues.

The evidence - natural watercourse 82Identification of the starting point of a watercourse on the site was the subject of debate leading into the hearing and was further investigated by Mr Shaw for the council and Dr Breen for the applicant during the hearing. The location and starting point of the watercourse is an important consideration in determining the necessary riparian zone along that waterway and how that zone impacts on the requirements of the RFS for the provision of the necessary APZ. This has the consequent impact of limiting development to the area outside the riparian zone and the ultimate development potential. 83The evidence provided shows a buffer distance of between 51m and 71m is required from the top of the watercourse. The extent of that buffer zone has significant impacts on the location of a number of dwellings and, depending on its extent, will require, at the best, redesign of a number of dwellings and deletion of one, and at it worst, require the deletion of six dwellings (lots 35-37, 39, 44 and 51) and the possible redesign of three dwellings. 84While no agreement was reached, the general location of the starting point of the watercourse was agreed and delineated on a plan that became Exhibit O. The development, for the purposes of the Water Management Act 2000, is integrated development and the applicant had not lodged the necessary controlled activity application to the OEH and accordingly, no GTA has been issued to identify the extent of works required to define the treatment of riparian zones along that waterway. The applicant urges the Court to allow the development subject to the deletion of these six lots as this is the likely maximum effect on the development by the riparian zone. 85If there were no other reasons that warranted the refusal of the application, we would have adjourned the proceedings to allow the location the starting point of the watercourse to be determined, any modifications made to the layout of the proposed development and GTA prepared.

The evidence - stormwater 86Evidence was provided by Mr Khoo for the council and Dr Phillips for the applicant. They agree that, after assessment of amended and additional documentation included in further design plans, the stormwater concerns regarding onsite stormwater detention system, stormwater quality management system and upstream overland flows raised by the council in contention 8 are addressed. On the basis of this evidence, the council no longer presses any stormwater issues.

Findings - existing and future character 87If considered under LEP 2000, and for the development application the approved, there must be a finding of consistency with the DFC for the B2 Locality. In considering the competing evidence, we are satisfied that the proposed development is inconsistent with the DFC for the B2 Locality for a number of reasons. First, the extent of modification of the site necessitated through the cut and fill proposed, vegetation removal and management of the necessary APZ areas is consistent with the DFC, in that the proposed development does not protect " the natural landscape including landforms and vegetation". 88Second, the concentration of the development on the plateau means that the footprint is a higher density and more intense development that those developments that currently adjoin the site. Whilst we accept that the development of a site for seniors housing would have some impact on the topography and vegetation of the site, we do not consider the development is "low impact" or "low intensity" and that the extent of vegetation removal and areas required for bushfire management is such that it does not "minimise disturbance of vegetation and landforms". We do not agree with Mr Player that the proposed development should be considered against the wider B2 Locality, as the appropriate assessment should be made against the more local visual catchment. Similarly, we do not agree with the evidence of Mr Lamb that that because the proposed development is a permissible use that this somehow gives the application increased reason for an approval. Clearly, the individual merits of the application determine whether approval should be granted. 89Third, and while the development will not be on "ridge tops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway", the inability to minimise disturbance of vegetation and the massing of the proposed buildings will create an unacceptable and obvious man-made scar on the escarpment, which, in our view is unacceptable given the emphasis on the retention and enhancement of the natural qualities of the area, or in the words of Mr Powe, a character in which built form is favoured over the existing natural landscape. We do however agree that the design of the development is one that would blend with the colours and textures of the natural landscape.

The amended Biobanking statement 90During the proceedings, the extent of the asset protection zones required for bushfire purposes was increased when new GTA's were issued by the RFS. The area now required to be maintained as an APZ has increased to around 5ha. Accordingly, the Biobanking statement does not reflect the area of land required for the APZ and due to the late submission of the Biobanking statement, the affect of the additional loss of vegetation on the existing Biobanking statement was unknown. 91Mr Galasso, for the applicant, submits that if the Court was minded to approve the application, the applicant should be provided opportunity to obtain a modified Biobanking statement. He advised that contact had been made with OEH and that a modified Biobanking statement could be obtained within two weeks. 92Mr Hemmings, for the council, submits that until such time as the applicant had obtained a modified Biobanking statement, the Court cannot consent to the application. He submits that it is not a matter that can be dealt with by way of a deferred commencement condition, as there is either a need to assess the impacts of the development on biodiversity or to obtain an amended Biobanking statement. As neither has occurred, he submits that should the Court find there are no other reasons to refuse the application the Court could give the applicant the opportunity to obtain an amended Biobanking statement. 93We agree with the submissions of Mr Hemmings and accept that it is not appropriate to issue a deferred commencement consent requiring modification of the Biobanking statement as it avoids the need to consider a requisite matter under s 79C(1) ( Cameron v Nambucca Council (1997) 95 LGERA 268 [at 275] and [276] )

Other approvals 94The Court was taken to judgments in Beacon Hill Retirement Pty Limited v Warringah Council [2010] NSWLEC 1011 and Lipman Properties Pty Ltd v Warringah Council [2010] NSWLEC 1310 in the consideration of the appeal. Beacon Hill Retirement is a previous appeal on the site of this application however the proposed development in that appeal is significantly different, as is the status of the draft LEP. Lipman Properties is an appeal that was upheld on the adjoining property however we are satisfied that the circumstances are different to the current appeal and that this judgment offers little, if any use in the assessment of the current appeal.

Orders 95The orders of the Court are:

1. The appeal is dismissed.
2. Development Application No 2010/1494 for the construction of a Seniors Living Development made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP 2004) at Lots 808, 809, 812, 813 and 817 DP 752038 No. 70A Willandra Road, Narraweena is refused.
3. The exhibits, other than exhibits E, H and O are returned. G T Brown Commissioner of the Court Sue Morris Commissioner of the Court

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: 04 July 2011