Vigor Master Pty Ltd v Northern Beaches Council

The site and locality

1. The site is identified as Lot 806 in DP 752038. It is irregular in shape having a splayed frontage to Willandra Road and Lady Penrhyn Drive and an area of 2.6 hectares.
2. The site contains an existing dwelling house situated at the northwest corner of the site addressing Lady Penrhyn Drive. The curtilage of this dwelling is above a natural terrace. The proposed 9 independent aged care units utilise part of what was this terrace area however the land has been the subject of fill deposited during the construction of the existing development on the site.
3. A subdivision was affected under DA 2009/0800 to create a lot of 2301 square metres for this house and a 2.4 hectare lot for the aged care units. This subdivision has not been registered to date.
4. Substantial site excavation, landscaping and vegetation clearance has been carried out on the site. The principle frontage and access to the site is from Lady Penrhyn Drive with an alternate access off Willandra Road at the lower eastern end of the site. Land uses surrounding the site comprise of bushland, adjacent to the site's northern, eastern and southern boundaries; urban low density development (detached housing) to the west and further south of the site; a retirement village which is located to the northeast of the site along Willandra Road and residential land (Narraweena suburb) supporting typical one and two storey detached style dwelling houses located to the east of Willandra Rd within the urban area.
5. The site is bushfire prone land.

Planning controls

1. Warringah Local Environmental Plan 2000 (LEP) applies to the site. That plan is in a different form from plans made under the provision of the Standard Instrument (Local Environmental Plans) Order 2006. It applies to land that was deferred when Warringah Local Environmental Plan 2011 (LEP 2011) was made in accordance with that Order.
2. Land to the west, south and east of the site is subject to the provisions of LEP 2011 and is zoned R2 Low Density Residential.
3. The site, and land to its north, falls within Locality B2 - Oxford Falls Valley under the LEP. The LEP identifies geographical locations that are further delineated based on the character of the land. Each locality identifies development that is complying development, development that is permitted with the grant of development consent and prohibited development. Permitted development is divided into three categories; Category One, Category Two and Category Three (cl 14). Housing for seniors or people with a disability is a Category Two land use within Locality B2 if the development satisfies the land described in paragraph (c), otherwise the use is prohibited development. Paragraph (c) states: c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29.
4. Clause 12 sets out the matters to be considered before consent can be granted for any development. Clause 12(1) provides that before granting consent the consent authority must be satisfied that the development is consistent with any relevant general principles of development control in Part 4. Clause 12(2) provides that before granting consent to any development the consent authority must be satisfied that the development will comply with the relevant requirements in Parts 2 and 3 (cl 12(2)(a)) and the development standards for the development as set out in the relevant Locality (cl 12(2)(b)). Clause 12(3) provides that before granting development consent for Category Two or Three development, the consent authority must be satisfied that the development is consistent with the Desired Future Character (DFC) described in the Locality, "but nothing in a description of desired future character creates a prohibition on the carrying out of development"(cl 12(3)(b)).
5. The DFC for the B2 Locality is: The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows. Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridge tops 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 whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged. A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape. Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.
6. Of the built form controls that apply to the locality, the amended plans address the building height control. The front, side and rear building setback controls reads as follows: Front building setback Development is to maintain a minimum front building setback. The minimum front building setback to all roads is 20 metres. On corner allotments fronting Forest Way or Wakehurst Parkway the minimum front building setback is to apply to those roads and the side setback is to apply to the secondary road. The minimum front building setback area is to be densely landscaped using locally occurring species of canopy trees and shrubs and be free of any structures, carparking or site facilities other than driveways, letterboxes and fences. Rear and side building setback Development is to maintain minimum rear and side building setbacks. The minimum rear and side building setback is 10 metres. The rear and side setback areas are to be landscaped and free of any structures, carparking or site facilities other than driveways and fences.
7. The Council contends that the development does not comply with the 20m setback control.
8. Clause 18(1) provides that "built form will be controlled in accordance with the general principles of development control, the DFC [desired further character] of the Locality and the development standards set out in the Locality Statement." Clause 18(2) provides "that strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or…the locality." Clause 18(3) provides that "nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control".
9. Clause 20 addresses whether a development can be approved if it does not comply with a development standard. Clause 20(1) provides that: (1) Notwithstanding clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.
10. Clause 29 provides grounds, which cannot be used to refuse applications for housing for older people or people with disabilities. These grounds address building height, density and scale, landscaped area, parking, visitor parking and private open space. There was agreement that the proposed development with its reduced height through the amendment satisfies the requirements in cl 29.
11. Clause 40 of the LEP applies specifically to housing for older people or people with disabilities. It is common ground that the provisions regarding support services and access have been met. The requirements of the clause also require that development must comply with the standards and principles in Schedule 16. Of those matters, the Council contends the provisions of cl 21 of Schedule 16 are not met. That clause is in the following form: (21) Neighbourhood amenity and streetscape The proposed development should - (a) contribute to an attractive residential environment with clear character and identity, and (b) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and (d) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site's land form, and (e) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development, and (f) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (g) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (h) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape.
12. Clause 57 of the LEP is in the following form: 57 Development on sloping land On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope. In particular - • the amount of fill is not to exceed more than 1 metre in depth, and • fill is not to spread beyond the footprint of the building, and • excavation of the landform is to be minimised. The geotechnical stability of sloping land to support development is to be demonstrated. Consent must not be granted for development involving the erection of a structure, including additions to an existing structure, on land identified as being potentially subject to landslip on the Landslip Hazard Map unless the consent authority has considered a report from a suitably qualified engineer as to the geotechnical stability of the land to support such development and an assessment of stormwater prepared by a suitably qualified hydraulic engineer.
13. Whilst the site is not identified on the Landslip Hazard Map, the Council contends the extent of excavation into the front setback is an undesirable planning response that contradicts the intent of the DFC and original design approach used to support Category 2 development of the site.
14. Clauses 63 (Landscaped open space) and 66 (Building bulk) are also relevant to the contentions in the case.

The contentions

1. The contentions in the case are detailed in the Council's Amended Statement of Facts and Contentions filed on 10 November 2020. The amendment of the application to remove one storey of the building addressed contention B1 Building Height and B3 9 Residential Apartment Development.
2. The contentions in the case are whether the development is appropriately sited due to what the Council says is non-compliance with the 20m front building setback controls contained in the LEP and detailed in the Oxford Falls Valley Locality Statement; whether the proposed building is consistent with the DFC for the locality; whether the neighbourhood amenity and streetscape requirements in Schedule 16 of the LEP are met and whether building bulk has been minimised and the building has minimal visual impact when viewed from the downslope side of the land.

The evidence

1. Expert evidence on landscape architecture was presented by Mr P Scrivener for the applicant and Mr A Powe For the council. They had discussed the proposed planting within the front setback to Lady Penrhyn Drive with regard to the requirements of the General Terms of Approval issued by the Rural Fire Service. Mr Scrivener had prepared a revised landscape plan and indicated tree planting within the proposed 10 metre front setback. They agreed that if the proposal were to be approved by the Court that this tree planting satisfies the requirements of Appendix 2 and 5 of the RFS publication Planning for Bushfire Purposes.
2. The experts were not required for cross examination.
3. Urban design evidence was heard from Mr R Dickson for the applicant and Mr D Chung for the Council. Mr J Mead provided town planning evidence for the applicant and Mr A Keller for the Council. All experts participated in joint conferencing preparing an Expert Joint Report, Exhibit 3 and a Supplementary Joint Report, Exhibit 5.
4. There is no agreement on whether the proposed building is to be constructed within the front building setback required under the locality statement. The Council's experts say that it is and the applicant's say that the front setback of the site is not to Lady Penrhyn Drive but to Willandra Road. They agree that the only controversial part of the proposed building A1 is that part which sits forward of the 20m setback line.
5. Mr Mead says the site is bound by two streets, being Willandra Road along the southeast boundary and Lady Penrhyn Drive along the southwest and south boundaries. Willandra Drive is a higher order road than Lady Penrhyn Drive and the main entrance to the development is off Willandra Drive. Whereas the locality statement gives instructions as to how to treat a secondary frontage for corner sites on Wakehurst Parkway and Forest Way, it does not give any instruction for other corner lots.
6. Mr Dickson agrees with Mr Mead's application of the fornt setback control and says the DFC relies on maintaining and enhancing the natural landscape so buildings can be screened by landscaping. The proposed development provides a 10 metre set back to the site's western boundary along Lady Penrhyn Drive, consistent with existing development on the site and compatible with lower density residential development on the western side of that roadway. He says the proposal demonstrates that the present character will remain unchanged in terms of retaining the natural environment in a low intensity, low impact format that protects landscape elements by presenting development compatible with existing built form development along the streetscape and approved development on the site.
7. Mr Keller disagrees and says the LEP does not make any concession to front building setbacks to either road. The location of the approved building and a 20m setback was proposed and accepted by the Court in its original approval. He says the proposal cannot rely on the setback to Willandra Drive as an alternative 20m compliant set back as this set back has been severely compromised from achieving the objectives of being densely landscaped using a locally occurring species due to the extensive internal road dual lane vehicle access parallel to the majority of this frontage. Therefore, the upper set back to Lady Penhryn Drive becomes significantly more critical to maintaining the DFC and objectives of the built form controls including the general principles of development required by Category 2 development.
8. Mr Chung agrees and says the 20m front setback is to provide numerical control to ensure an adequate landscape buffer will be provided. The masterplan approved for this site by the Court has set the overall layout of built form to be spread across the whole site to ensure a low intensity and low impact development will take place. The proposal to add a new built form that will breach the 20m setback control and make the proposed building the highest building, bigger in bulk and prominence, is inconsistent with the character and built form which is designed to achieve a low intensity low impact use, design and external appearance. He did not consider the deletion of the top floor made any difference to his view on the setback control.
9. The experts also disagreed whether the development complies with the DFC for the locality.
10. Mr Mead considers the current proposal does not tip the balance so as to render the development no longer being a low intensity and low impact form of development. The incremental change in the locality with regard to the whole locality will be negligible and whilst large parts of the B2 locality contain natural landforms and remnant bushland, the subject site is highly modified. The consent authority only need be satisfied that the use is low impact and low intensity, not that there are no impacts. The site has a FSR control of 0.5:1 and the proposal is for 0.24:1. The proposal complies with the height limit, landscape area requirement, parking and private open space controls. There are no other built form controls in contention other than the street setback control to Lady Penrhyn Drive. It is his opinion that the setback for the proposed building, which occupies 20% of the length between the north-western boundary and south-eastern tip of the site, does not tip the balance towards the proposal being unacceptable when measured against the test of being low impact and low intensity.
11. He considers the proposal responds directly to the site conditions to be of low impact. This is achieved by its siting which has it generally less than one storey below the level of the street frontage, the fact that a large open area is retained in front of buildings C1, C2 and B1, with those buildings being cited well back beyond the minimum setback, and due to the fact that the proposal does not affect any natural landform or feature of the site, which the DFC statement seeks to protect. The landscape provision on the site will exceed the minimum requirement and the proposal is sited on a part of the site that is not constrained by bushfire to the same extent as those areas that are required to be set aside, that being the northern part of the site. He concludes that the development is consistent with the DFC and the proposal will be a subtle element in the streetscape due to the levels it adopts and its location on the site. The deletion of the upper storey of the building would further address the DFC.
12. Mr Dickson says that irrespective of the numerical setback requirements under the LEP consideration of the proposed development's compatibility with existing built form in the streetscape and the DFC of the B2 locality is necessary. The streetscape along Lady Penrhyn Drive predominantly comprises 2 storey built form typologies visible above road level on the western side of the road. In the context of the site, these buildings exist together in harmony with existing built form on the site (No.8 Lady Penrhyn Drive) notwithstanding differences in scale or appearance. Lady Penrhyn Drive is unique in that travelling northbound along the street sees nodes of different characters within the visual catchment of the site that exist in harmony regardless of their differences.
13. He concludes the proposed development will remain characterised by native landscape vegetation as set out in the DFC of the B2 locality and does not result in any significant impact on the present landfill character of that locality given its compliance with the building height standards set out in the LEP. For the true reason he says the proposal is consistent and compatible with the DFC.
14. Mr Keller disagrees and says the new design of building A1 relies on deep excavation into the said "escarpment" and the building climbing up at the steep slope towards the top of the site over a much larger building footprint than the original individual buildings and expanding into the front set back area is inconsistent with the DFC. The DFC contemplates landscape including landforms will be protected and where possible enhanced and he says placing entire dwelling units and deep building excavation works into the 20m front setback is not protecting and enhancing the landscape or landform that the DFC is seeking. Therefore, the proposal departs from the characterisation of being low intensity and low impact and that is inconsistent with the DFC.
15. Mr Mead says the development has been designed and located to minimise the bulk of the building and its visual impact when viewed from downslope. This has been achieved through excavating car parking into the site slope and providing for generally two storeys above natural ground level, in a similar manner to existing buildings on the site. The building is sited such that its base sits well blow street level, minimising its bulk in appearance when viewed from the street. From down slope, part of the building will from most vantage points be set behind other existing buildings. The height of the building will mean that it is relatively higher than those buildings to its east however this would be expected in a visual sense given the sloping topography of the site which sees the existing development stepping up the site. The proposal continues this pattern of development. The relative height of the building will be lower than the adjoining dwelling to the north-west. Whilst the shape of the proposed building differs to other buildings on the site this does not render the proposal inconsistent with the DFC statement and Mr Mead then concludes the building is compatible and the additional built form is acceptable.
16. Mr Dickson says the proposal, with the loss of the upper floor, would not be visible from adjacent to the site on Lady Penrhyn Drive and only visible from further away from the site. The green roof would assist in screening the built form.
17. Mr Keller says the proposal has taken a civil engineering response to the DFC, built form controls and general principles whereby excavating and covering components of the proposal within the front building setback area is utilised. Covering the roof with landscaping is symptomatic of development that is utilising the marginal areas of the site for further upscaling that is contrary to the original supporting elements that development of the land for housing relied upon.
18. The visual impact and landscape setting is compromised by overarching requirements to meet bushfire protection under s 100D of the Rural Fires Act 1997. Placing landscaping on the roof of such a development raises concerns about its appropriateness and its functionality. There are counteractive requirements of the LEP that seek to achieve the minimum front building setback to be densely landscaped using locally occurring species of canopy tree and shrubs and to be free of any structures, car parking or site facilities. Therefore the expansion or enlargement of building A1 becomes immediately questionable to being an appropriate design response in the first instance of considering the purpose of the DFC and the purpose of the locality controls.

Conclusion and findings

1. Having regard to the evidence, I find the development is not consistent with the DFC for the Oxford Falls Valley locality. That is because the proposed building has not been designed to protect or enhance the natural landscape including landforms and vegetation. Whilst the construction of the existing development on the site has resulted in considerable disturbance and changes to the landform, the proposal would further compromise the landform through excessive cut and the need for retaining walls.
2. Those walls would have to be within the building setback area to provide the necessary separation to retaining wall and windows within the western wall of the proposed building. That excavation would restrict the opportunity to carry out the landscaping shown on the proposed landscape plan, a fact conceded by the applicant's experts when cross examined during the hearing. The existing fence, a detracting element in the streetscape and a structure I consider is contrary to the DFC, will screen all but the canopies of the few trees proposed to be planted in the remaining area available.
3. I accept the evidence of the Council's experts that a 20m setback to Lady Penrhyn Drive is required and has not been provided. Failure to provide that setback in this case results in a failure to achieve the DFC. The control applies to all roads other than corner allotments that front either the Forest Way or Wakehurst Parkway. The irregular nature of the site results in the site having frontage to both Lady Penrhyn Drive and to Willandra Road. The LEP does not distinguish between a primary or secondary road or any other form of differentiation but is specific in its terms and requires the setback to all roads. The only concession to a setback where a site has frontage to a road is in the case of the lots on the corners of Forest Way and Wakehurst Parkway. The main entrance and address of the site is to Lady Penrhyn Drive and this also supports my view.
4. For the reasons outlined above, I do not consider the front building setback, with the extent of retaining walls and the limited area available, is capable of being densely landscaped using locally occurring species of canopy trees and shrubs and is free of any structures. I note the limitations that apply due to the bushfire affectation however this exacerbates the impact of the proposed cut and need for the walls in such close proximity to the front boundary of the site.
5. With regard to the matters detailed in Schedule 16 of the LEP, I again prefer the evidence of the Council's experts in relation to those matters contained in clause 21. The development fails, through the excessive excavation proposed, to maintain appropriate residential character by using building form and siting that relates to the site's land form.
6. The development, being on sloping land, does not minimise the need for cut and fill but rather locates two main footprints within excavated areas with a need for retaining walls that, in the proximity to the frontage of the site, limit the opportunity for landscaping. Whilst I accept the existing dwelling house that is located on the site and was in existence when this Court determined the original development application, is located on a lesser setback and higher upslope, I do not consider that fact is a reason to allow for a reduced setback. The LEP is clear on what is envisaged for the locality and I do not consider this dwelling would satisfy that character.
7. The proposed building, whilst not being visible from immediately adjacent to the site would be visible from downslope and is higher than the existing development on the site.
8. The failure of the proposal to satisfy the standards and principles in Schedule 16 and the DFC for the Oxford Falls Valley locality means that consent should not be granted.
9. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA2019/0447 for the construction of a new building (building A1) containing 9 units for housing for older people or people with a disability at No. 8 Lady Penrhyn Drive, Beacon Hill is refused consent. 3. The exhibits, other than exhibits A, B, G and 1, are returned.

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: 22 December 2020