Whittaker v Northern Beaches Council

The planning controls

1. The site is zoned R2 Low Density Residential in the Pittwater Local Environmental Plan 2015 (the LEP). Seniors living is a prohibited use in the zone but is permissible under the provisions of the Seniors Living SEPP.
2. The site complies with the SEPP requirements for accessibility to services at cl 26 given its distance to public transport, and the application included a site analysis as defined in and required by the SEPP.
3. The development is also required to comply with Part 3 of the SEPP in terms of the Design Requirements at Division 1 and the Design Principles at Division 2. The Court cannot grant consent unless satisfied that adequate regard has been had to the Design Principles. These relate to neighbourhood amenity and streetscape, visual and acoustic privacy, solar access and designing for climate, stormwater, crime prevention, accessibility, and waste management.
4. Part 4 of the SEPP, at Division 1, contains development standards which must be complied with: subcl 40(1). The site met the requirements at subcll 40(2) and (3) having a minimum area of 1000m² and minimum frontage of 20m. Subclause 40(4) requires that, if the development is in a residential zone where residential flat buildings are not permitted, as applies in this instance, the height of all buildings must be 8m or less, buildings adjacent to a boundary must not be more than 2 storeys, and buildings in the rear 25% of the site must not exceed 1 storey. Storeys exclude (basement) car parks if the car park does not protrude more than 1m above ground level: SEPP subcl 3(2). The development complied with these requirements being 8m or less in height, not more than 2 storeys above the car park, and with no building proposed within the rear 25% of the site.
5. The SEPP also contains specific standards for self-contained dwellings which must be complied with having regard to the nature of future occupants, such as wheelchair and accessibility design requirements, security measures, and the design of the internal layout of the dwellings (Part 4, Division 3).
6. Compliance with these and other SEPP requirements not in contention was established in the Statement of Environmental Effects and the Accessibility Review Report submitted with the application, including as amended. Conditions of consent also require compliance with these requirements.
7. Finally, the SEPP at Part 7, Division 4 contains development standards that cannot be used as grounds to refuse consent if complied with. These are on the basis of: height, if the building height is 8m or less; scale and density, if the floor space ratio (FSR) is 0.5:1 or less; landscaping, if a minimum of 30% of the site area is landscaped and at least 15% of the area comprises deep soil zones; solar access or private open space, if specified provisions are met; or parking, if there are at least 2 visitor car spaces for more than 8 dwellings and at least 0.5 (resident) car spaces for each bedroom.
8. In terms of the LEP, the site is identified as having acid sulphate soils (ASS) and therefore subject to the provisions of cl 7.1. These provisions require development consent and an acid sulphate soils management plan (ASSMP) unless a preliminary assessment has been accepted by the Council demonstrating that an ASSMP is not required. A preliminary assessment was undertaken and the findings documented in a Geotechnical Report submitted with the application. That report concluded that there was no likelihood of the development intersecting ASS and accordingly an ASSMP was not required: a finding accepted by the Council.
9. Clauses 7.2 and 7.3 of the LEP require appropriate management of earthworks and flooding on the site. The Council indicated that the proposed development had addressed these requirements, including through proposed conditions of consent.
10. The site is also shown on the biodiversity map in the LEP and therefore subject to the provisions of cl 7.6. The Council initially contended that the development did not meet the relevant requirements of this clause, being as follows: (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider: (a) whether the development is likely to have: (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
11. Under the LEP, the site is identified as having a geotechnical hazard and is therefore subject to the provisions of cl 7.7. The Council did not contend that the required matters under cl 7.7 had not been considered or met but contended that the classification of the land as having a geotechnical hazard precluded the proposed use under the Seniors Living SEPP.
12. The maximum permissible height for the site under the LEP is 8.5m, and, as indicated, development cannot be refused under the Seniors Living SEPP if the height of the development is no more than 8m. There is no maximum FSR for the site specified in the LEP but the development cannot be refused under the SEPP if the maximum FSR does not exceed 0.5:1.
13. The site is not identified by the Council as being bushfire prone.
14. Residential development is subject to the provisions of the Pittwater 21 Development Control Plan (the DCP). The DCP contains controls dealing with a range of matters from building envelopes and setbacks to wildlife corridors and scenic protection.
15. Under the DCP, the site is identified as being slip affected (landscape hazard), flood affected and mapped as a wildlife corridor. It is located within the Avalon Beach Locality which has a desired character including that it will remain primarily a low density residential area with dwelling houses a maximum of 2 storeys in a landscaped setting integrated with the landform and landscape.

Amending the application

1. In responding to the appeal, the Council lodged a Statement of Facts and Contentions (SFC) (Exhibit 1) which raised 7 contentions as well as requiring additional information to undertake the assessment. The contentions were: 1. The permissibility of the use. 2. Access to the bus stop for future elderly residents. A new footpath on the southern side of Central Road, as sought by the Council to address this issue, would result in the loss of 9 native street trees, including 7 significant trees. It would also prohibit replacement plantings within the road reserve to offset the tree loss. 3. The proposed building height. 4. Neighbourhood impacts and incompatibility in the streetscape and with the character of the local area. 5. Loss of trees and inadequate replacement landscaping. The proposal required the removal of 21 existing trees with 12 of these been identified as medium or high significance on a site located within a wildlife corridor. The development had therefore not been designed to avoid or minimise impacts to existing native vegetation contrary to cl 7.6 of the LEP and the requirements of the DCP. 6. Inadequate visual privacy for future residents. 7. Impacts on neighbours, particularly those at 67 Central Road.
2. In terms of permissibility, the parties sought a preliminary determination by the Court as to whether the use was permissible as, if not, consent could not be granted. In this regard, the Council had contended that, as part of the land was mapped as a geotechnical hazard, and the description of 'geotechnical hazard' was a like description for 'natural hazard', the SEPP did not apply. This was because subcl 4(6) of the SEPP states that the policy does not apply to land described in Schedule 1 of the SEPP as environmentally sensitive land. Schedule 1 lists such land as including land described as 'natural hazard'.
3. In Whittaker v Northern Beaches Council (No. 3) [2018] NSWLEC 143 (Whittaker (No. 3)), Pepper J determined, in essence, that land identified in an LEP as 'geotechnical hazard' was not the same as land identified in an LEP as 'natural hazard' and therefore the development was permissible with consent under the SEPP. The permissibility contention was therefore resolved by the Court prior to the hearing commencing.
4. The appeal was the subject of conciliation under s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. At the commencement of the hearing, the parties consented to me having regard to evidence presented to, and anything said or seen at, that conciliation: s 34(12).
5. The conciliation commenced onsite in the presence of the parties and their experts. Two objectors spoke. The first, Mrs Austin, lives with her young family at 67 Central Road (No. 67). The Court and parties visited the rear yard of No. 67 and viewed the appeal site from inside the Austin's house.
6. Mrs Austin strongly objected to the development given its bulk and size and resultant amenity impacts. Particular concerns were raised with the impacts of the driveway and car park adjacent to the main bedroom, the proposed setbacks from her boundary, and the height of the development. She considered there would be visual, privacy, overshadowing and outlook impacts on her house and garden. Further, the road network could not accommodate additional traffic and there would be a poor streetscape outcome relative to surrounding houses. She indicated that, prior to purchasing No. 67, the family were assured by their lawyer that seniors housing could not be developed on the site. Her family would be unable to stay during the construction period given the noise and dust impacts on their well-being.
7. The second objectors, the Robertsons, live at 134 Central Road. They were also concerned with the size and scale of the development arguing it was out of character with most of the existing dwellings in the area. They also considered it unfair on the family living at No. 67 who recently purchased the property to have to live next door to a multi-storey development which would be overbearing and take away their light, privacy, peace and well-being. Finally, they were concerned that Central Road already has serious traffic issues which pose significant risks to pedestrians, cyclists and car users. It is a narrow street not designed to cater for two-way traffic when vehicles park on both sides of it.
8. A view was undertaken of this section of Central Road including of the existing footpaths and bus stop. The proposed trees to be removed onsite, and which could be required to be removed in the road reserve to provide a southern footpath to the bus stop (as the Council sought), were noted.
9. The need for the footpath was the main issue remaining in contention between the parties following conciliation. Design changes sought by the Council to improve the appearance of the development to Central Road and the amenity for residents of No. 67 were agreed in principle by the applicant as were other requirements raised as contentions by the Council. However, as agreement could not be reached on the footpath in a timely manner, the conciliation was terminated and the matter set down for hearing.
10. The applicant and the Council continued to conciliate outside the formal conciliation process to address the contentions. Conferral was undertaken between experts for the parties in particular on an acceptable location for a new southern footpath to the bus stop which minimised tree removal.
11. On 16 November 2018, leave was granted by the Court to amend the application to comprise amended plans. The details and alignment of a new footpath were also agreed. This amended application was the subject of the hearing.

Responding to the remaining contentions

1. The amended application in summary comprises: 1. A new easily navigable footpath on the southern side of Central Road connecting the site to the existing footpath adjoining the bus stop. The footpath is designed and located to require only 3 trees to be removed in the road reserve. These trees will be replaced with 9 trees as a condition of consent. 2. Retention of an existing Magenta Lilly Pilly on the site which adjoins the boundary with No. 67 (referred to as Tree 19) as a result of the driveway and retaining walls being setback at least 900mm from the eastern boundary and 2m where adjoining the dwelling on No. 67. These structures had previously been as close as 700mm to the eastern boundary. The setbacks will not only enable retention of Tree 19 but also provide improved amenity to the residents of No. 67. 3. Excavation and retaining walls are clear of Tree 19 with driveway and parking levels reduced and the parking redesigned accordingly. One less visitor car space is proposed enabling the basement to be moved off the eastern boundary and the provision of increased deep soil landscaping. The height of the driveway has also been lowered by some 300mm; 4. Setting back rooms which face No. 67 in excess of 8m from the common boundary, privacy screens added where required, and screen planting along the entire eastern boundary, including 3 canopy trees; 5. Increased front and side setbacks to the northern building and facade design changes, including the stepping of the building and increased landscaping in the front setback. This improves the appearance of the development in the streetscape having regard to the desired future character for the Avalon Beach locality in the DCP; 6. High open timber fencing at the front boundary along with additional landscaping as required by the Council; and 7. Strata subdivision is no longer proposed.
2. Joint expert reports were filed in response to the amended application. These included an Arboricultural Report, a Biodiversity Report, Landscape Report, Traffic Report and Town Planning Report. Agreed conditions of consent were also filed and various technical reports updated.
3. The hearing commenced in Court where Mrs Austin gave evidence. She was aware of the amended plans but remained concerned with the bulk, scale and size of the development. The concerns related to visual impacts, privacy and the vicinity of the driveway next to her bedroom as well as the size of the 2 level basement car park. She also raised issues of potential overshadowing, noise and traffic.
4. Mrs Austin reiterated that, prior to purchasing No. 67, her family had been advised that such a development could not occur. They would otherwise not have purchased No. 67 given there is already seniors living on their other (western) side boundary. She remained concerned at the extent and timing of construction compared to what would be expected for a dwelling house. She advised that a lot of people had opposed the development but were currently away. The concerns of these residents were that what was proposed was not in keeping with Avalon village given its high rise nature.
5. The parties however, advised the Court that the amended application, along with agreed conditions of consent, addressed all of the Council contentions. This was confirmed by all of the joint expert reports filed with the Court.
6. In summary, the arboricultural experts agreed that the proposed reduction in the number of street trees to be removed, from 9 to 3, was acceptable subject to replacement street tree planting. A required condition limits the footpath width to 1.2m within a 3m radius of 3 trees which would remain in close proximity to the footpath.
7. These experts also noted that the amended landscape plans relocate walling and remove private lawn areas in the front setback to allow for increased soil volume at natural ground level which will support canopy trees. This was acceptable in terms of meeting their requirements (and those of LEP cl 7.6).
8. The biodiversity experts noted that the amended application retains 40 locally native trees and replaces at least 19 canopy trees. In addition, modifications result in the retention of Tree 19 (the Magenta Lilly Pilly) which is listed as vulnerable under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and endangered under the NSW Biodiversity Conservation Act 2016. Tree 45, a Swamp Mahogany, will also now be retained. Therefore, the amended development retains or replaces native onsite canopy trees in accordance with the requirements of the LEP and DCP. In particular, the development has also been redesigned to avoid or minimise impacts to existing native vegetation as required by cl 7.6 of the LEP.
9. The landscape experts also agreed that the amended application was now acceptable given the proposed setback of the building to allow for increased landscaped area, and canopy trees and shrub screen planting within the front setback. Twelve indigenous tall canopy trees are now proposed along with 21 small indigenous trees and 6 indigenous palms. Accordingly, the development now incorporates sufficient canopy trees and understorey planting to provide suitable boundary planting and integrate the development with the surrounding landscape. It also provides suitable landscape treatment to minimise the visual impact of the development when viewed from the street.
10. They also noted that the amended proposal reduces the number of street trees required to be removed to an acceptable level with replacement street tree planting to comprise species required by the Council. They also agreed on conditions as to the required size and maintenance of the new planting.
11. The planning experts agreed that the proposed new footpath meant that the accessibility requirements of cl 26 of the Seniors Living SEPP had been satisfied. The development as amended also met the height requirements of the SEPP and the height was acceptable.
12. The planners also agreed that the additional setbacks and landscaping provided to the street assisted in reducing the impact of differences in height between the development and neighbouring dwellings. The front setback of the western portion of the northern building has been increased to more closely align with the setback of the house at No. 67. The development now provides setbacks to dwelling walls of between 7m and 10.4m across the site frontage. This results in a greater consistency with the character of the street with respect to front setbacks, which are predominantly greater than 6.5m, and provides greater opportunity for landscaping (including canopy trees) within the front setback. Further, the darker finish of the front building elements and the increased landscaping assist in reducing the appearance of the building when viewed from the street.
13. The planners agreed that the narrowing of the northern elevation also assists in reducing the overall width of the northern building as an alternative to providing a break through the middle of the building. Greater separation at side boundaries was considered more beneficial to neighbours and the streetscape overall whilst the increased side setbacks satisfactorily reduces the scale of the development and provides adequate spatial separation and landscape opportunities between the development and adjoining neighbours.
14. It was also agreed by the planners that, whilst the FSR at 0.52:1 remains slightly above 0.5:1, the reduced floor space reduces the width of the development at the frontage. This, together with other measures proposed, means the development now presents at a scale that is acceptable in relation to the streetscape and neighbour impacts. Further, the increased front setback and the subsequent additional landscaping result in private open space areas with appropriate levels of privacy for future residents given the increased spatial separation from the public domain.
15. In terms of impacts to neighbours, in particular to No. 67, the planners noted that the suspended driveway has been lowered and the setback from the eastern boundary increased. This reduces the amenity impacts upon No. 67 by providing a more appropriate spatial separation and sufficient depth for planting to mitigate the visual impact of vehicles using the driveway, and an appropriate visual buffer along with the retention of Tree 19. Whilst acknowledging acoustic impacts from the driveway are still likely, the planners considered that the additional spatial separation and landscaping, together with a proposed solid 900mm high upturn, would mitigate these impacts to an acceptable extent.
16. Finally, the planners confirmed that more than 3 hours of solar access to No. 67 is maintained in mid-winter thus meeting the requirements at cl 35 of the SEPP, with no overshadowing until after 3pm.
17. Mr Staunton, counsel for the applicant, also submitted that it is likely that the removal of a large Norfolk Island Pine, required for the development, will improve the existing solar access to No. 67.
18. More onsite (resident) parking is provided than required by the SEPP and Mr Staunton submitted that the impacts in Central Road are, on the basis of expert advice, minor with the Traffic Report submitted with the application demonstrating that there would be no unacceptable impacts. This advice had been accepted by the Council. Traffic and safety impacts in Central Road (for motorists, cyclists and pedestrians) were therefore not raised as contentions, albeit it was accepted that residents had a different view. Only 12 dwellings are proposed, being for seniors, therefore car use by residents, and noise associated with the car park use, is unlikely to be high.
19. Conditions of consent were agreed requiring a construction management plan and to minimise construction impacts on neighbours.
20. Mr Staunton advised that the applicant had also had conflicting advice from the Council as to whether the use was permissible noting Mrs Austin's comments in this regard. However, this matter had been settled by the Court in Justice Pepper's decision in Whittaker (No. 3).
21. In terms of Council's consent as owner being required for the application given the proposed footpath in the road reserve, Mr Staunton submitted that the Council now did not have any issues with the application subject to agreed conditions including requiring the footpath and associated tree replacement. In his view these conditions were sufficient to evidence owner's consent to the application.
22. Alternatively, he argued, the Court has power pursuant to s 39(2) to of the LEC Act to give owner's consent for works on land owned by the Council and should do so given the Council's experts had assessed the proposed works and found them to be acceptable. In this regard, he referenced Ipoh Pty Limited v Sydney City Council [2006] NSWLEC 102 (Ipoh) at [20] where Talbot J found, in essence, that, if a Council considers that it should give consent to a development application, it should also give consent to the making of the application.

Findings

1. Given all of the Council contentions were resolved between the parties, and the amended application addresses the concerns raised in submissions insofar as they are reasonable or relevant, I have determined that the appeal should be upheld and the development application, as amended, approved subject to the agreed conditions of consent.
2. In coming to that conclusion, I accept that nearby residents in Central Road, and the neighbours at 67 Central Road in particular, will remain concerned as to the impact on the character and safety of the street and on their amenity. Ultimately however, I find that the amended proposal, developed in collaboration between the parties, is acceptable given what the controls allow.
3. The development has been modified in response to its context and the site constraints which include dwelling houses adjoining and opposite. The development is permissible, only marginally exceeds the permissible FSR on which basis consent cannot be refused under the Seniors Living SEPP, and has been modified to maximise tree retention and landscaping whilst minimising impacts to neighbours.
4. The application also cannot be refused on the basis of the landscaping provided if at least 15% of the landscaping comprises deep soil landscaping (facilitating canopy trees) and at least 30% of the site is landscaped. The development, as amended, provides well in excess of these requirements with 50% of the site landscaped, of which 41.6% is deep soil landscaping.
5. Furthermore, the application has been amended, including with increased setbacks, to specifically maximise tree retention and the benefits of having deep soil landscaping within the front setback to achieve the desired character for the locality and reduce impacts for neighbours.
6. In terms of parking, the application cannot be refused under the SEPP on parking grounds if at least 18 (resident) spaces are provided for the 36 rooms proposed. The 24 resident spaces provided exceed the SEPP requirement and offset the proposed provision of only 1 visitor space against a must not refuse SEPP required provision of 2 visitor spaces. I also note that 2 visitor spaces were proposed but one was removed to reduce the extent of the basement and relocate the car park entrance from the common boundary with 67 Central Road in an endeavour to reduce amenity impacts to that neighbour.
7. The traffic analysis and expert advice is that Central Road can accommodate the volume of traffic generated without adverse impacts on safety or its operation.
8. Therefore, neither the existing parking situation in Central Road nor the operation of that road are grounds for refusal, albeit I accept that the views of residents of Central Road differ from this conclusion.
9. I am required to have, and have had, regard to the Design Principles of the Seniors Living SEPP and these principles are met with the amended application.
10. The development is height compliant with the SEPP. On the basis of subcl 50(a) of the SEPP, the height of the development can therefore not be a ground for refusal. The site also readily meets the minimum site area and site frontage requirements of the SEPP.
11. I have also considered, as I am required to, the relevant provisions of the LEP that apply given the site's designation and constraints identified at cll 7.1, 7.2, 7.3 and 7.6. I am satisfied that the amended application, along with the agreed conditions of consent, has considered the requirements of these clauses.
12. In particular, in terms of LEP cl 7.6, I accept the advice of the numerous specialist experts who addressed the requirements of this clause. These experts all agreed that the requirements of the clause have been met with the proposed retention of the endangered Magenta Lilly Pilly and other trees, and with the new canopy trees and other offset planting proposed.
13. I am aware that the location and design of the new proposed southern footpath was determined with the involvement of numerous experts in order to achieve a safe design whilst minimising tree removal and requiring tree replacement and enhancement. Owner's consent for these works is therefore given having regard to the Court's findings in Ipoh and noting that the Council does not oppose the amended application subject to requiring these works.
14. The planning experts advised that the increased setbacks, marginally reduced height and floor space and the increased landscaping, including retention and replacement of canopy trees along the entire boundary with 67 Central Road, will result in a development that will have an acceptable visual fit when viewed from the streetscape and minimise the impact on the residents of No. 67.
15. In this regard, the planners had considered the objections to the development by the residents of No. 67 and other neighbours, but nevertheless agreed that the amended plans are acceptable and worthy of approval.
16. I also note that the agreed conditions of consent include the requirement for a construction management plan and that the construction of the development and preparation of the site, including operation of vehicles, must be conducted so as to avoid unreasonable noise or vibration and not cause interference to adjoining or nearby occupants. Therefore, whilst I accept that the neighbours will still be impacted by the construction, I consider those impacts are reasonable in the circumstances given that some degree of construction impact is inevitable but must be minimised.
17. In conclusion, I find that the application as amended and proposed to be conditioned meets the relevant pre-conditions to consent for the development under the LEP. This includes being under the maximum permissible height of 8.5m and adopting measures required by the provisions at cl 7.6 to avoid, minimise or mitigate biodiversity impacts. These measures are such that the amended application was not opposed by any of the biodiversity, arboricultural or landscape experts engaged by the parties.
18. The amended application has also had regard to the DCP provisions to ensure that the development is designed within a landscaped setback and will be in keeping with the character of the locality and the streetscape, albeit varying in use from the surrounding predominantly lower density dwellings.
19. Finally, I am satisfied, given the modifications undertaken, expert evidence provided, compliance with the controls, and agreed conditions of consent, that, whilst there will be some adverse amenity impacts on the adjoining residents at 67 Central Road, and whilst sympathetic to the circumstances of these residents, these impacts have been minimised and are not a sufficient basis to warrant refusal.

Orders

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans. 2. The applicant is to pay the respondent's costs that are thrown away as a result of amending the development application as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is allowed. 4. Development Application N0512/17 for seniors living at 69-71 Central Road, Avalon Beach is approved subject to the conditions set out in Annexure "A". 5. The exhibits are returned except for Exhibits A, B and 1.

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: 06 February 2019