Younes v Ku-ring-gai Council

Land and Environment Court (NSW)|2020-02-13

Judgment

COMMISSIONER: Merrivale Lane is a tree-lined street in Turramurra characterised predominantly by low density single dwelling houses on medium to large landscaped allotments. Properties on the eastern side of Merrivale Lane share their rear boundary with Pymble Golf Course. Three of those properties are at 117 - 121 Merrivale Lane, where the applicant in these proceedings, Ms Younes, seeks development consent for the demolition of existing dwellings and the construction of a seniors living development comprising 19 self-contained dwellings and basement car-parking. These proceedings are an appeal by Ms Younes against the refusal by Ku-ring-gai Council ("the Council") of a development application seeking consent for an earlier iteration of the same. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
The development application is made pursuant to the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("SEPP HSPD"). At the hearing, leave was granted to Ms Younes to amend the development application to rely on amended plans. The proposed development, as amended, entails the construction of two, 2-storey buildings comprising 10 self-contained dwellings at the ground floor, and 9 self-contained dwellings on the first floor. Of the 19 dwellings, 14 are two-bedroom units, and 5 are three-bedroom units. The proposed development also seeks to construct an accessible footpath from the development street frontage to connect to the existing footpath that commences at the front of 125 Merrivale Lane, which provides access to a bus stop on Buckra Street. Also proposed are works on the existing footpath so that the footpath that provides access to the bus stop meets the gradients required for accessibility under the provisions of the SEPP HSPD.
Whilst the amendments to the proposed development resolve a number of contentions raised in the proceedings, the Council remains opposed to the grant of development consent on the basis that the proposed development does not satisfy the requirements of cl 26 of the SEPP HSPD concerning the access to services and facilities. The Council also contends that the infrastructure provided by the proposed development, which is discussed further below, is not sufficiently supported by details of financial arrangements to satisfy the site compatibility criteria in cl 25 of the SEPP HSPD.

The site and the locality

The site comprises three lots legally described as Lots 19, 20 and 21 in DP 25057, and known as 117 and 119-121 Merrivale Lane, Turramurra. Comprised of those three lots, the site has a frontage of 67 metres to Merrivale Lane and an irregular rear boundary of 67.5 metres. The site has an average depth of 59.9 metres and a total area of 4,093.3m².
The site is located on the eastern side of Merrivale Lane and is positioned on the low side of the street, with Pymble Golf Course adjoining the site to the rear, where a steep embankment down to a natural creek contains Blue Gum High Forest.
The site currently accommodates a dwelling and swimming pool on Lot 19 and a dwelling and tennis court on Lots 20 and 21.
The predominant character of the surrounding development is of one and two-storey dwellings on landscaped allotments. Adjoining the site to the north is 123 Merrivale Lane, which contains a two-storey dwelling house. Further to the north is 125 Merrivale Lane, which contains a seniors living development comprising 6 self-contained dwellings over basement carparking.

The Planning Framework

The site is zoned R2 - Low Density Residential, under the Ku-ring-gai Local Environmental Plan 2015 ("KLEP 2015"). Clause 2.3(2) of the KLEP 2015 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
Development for the purposes of seniors living is an innominate prohibited use in the R2 zone. However, it is made permissible by the provisions of the SEPP HSPD, which allows development on land zoned primarily for urban purposes for the purpose of any form of seniors housing if it is carried out in accordance with the provisions of the SEPP HSPD.
The SEPP HSPD applies to the site by virtue of cl 4, which provides: 4 Land to which Policy applies (1) General This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if: (a) development for the purpose of any of the following is permitted on the land: (i) dwelling-houses, (ii) residential flat buildings, (iii) hospitals, (iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or (b) the land is being used for the purposes of an existing registered club.
The land on which the seniors housing is proposed falls within the description of "land zoned primarily for urban purposes", and dwelling houses are permitted on the land. As such the SEPP HSPD applies pursuant to cl 4(1)(a)(i).
Clause 15 of the SEPP HSPD provides as follows: 15 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy: (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel, a residential care facility or serviced self-care housing.
The chapter therefore allows "any form of seniors housing" on the site, "if the development is carried out in accordance with this Policy".
The aims of the SEPP HSPD are as follows 2 Aims of Policy (1) This Policy aims to encourage the provision of housing (including residential care facilities) that will - (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by - (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and (c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.
Clause 14 also sets out objectives for Chapter 3 of the SEPP HSPD, which contains cl 15 above as well as the site related requirements for seniors living developments. Clause 14 provides: 14 Objective of Chapter The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.
One of the site related requirements is for access to facilities and services and is set out in cl 26, which provides: 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to - (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. (2) Access complies with this clause if - (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable - (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Greater Sydney (Greater Capital City Statistical Area) - there is a public transport service available to the residents who will occupy the proposed development - (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or (c) in the case of a proposed development on land in a local government area that is not within the Greater Sydney (Greater Capital City Statistical Area) - there is a transport service available to the residents who will occupy the proposed development - (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). Note. Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable - (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time. (4) For the purposes of subclause (2) - (a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause - bank service provider means any bank, credit union or building society or any post office that provides banking services.
The site is located on bushfire prone land, which is mapped as "Bush fire prone land - vegetation buffer". As a result, cl 27 of the SEPP HSPD applies, which provides: 27 Bush fire prone land (1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development on land identified on a bush fire prone land map certified under section 10.3 of the Act as "Bush fire prone land - vegetation category 1", "Bush fire prone land - vegetation category 2" or "Bush fire prone land - vegetation buffer" unless the consent authority is satisfied that the development complies with the requirements of the document titled Planning for Bush Fire Protection, ISBN 0 9751033 2 6, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning, dated December 2006. (2) A consent authority, in determining a development application made pursuant to this Chapter to carry out development on land in the vicinity of land identified on a bush fire prone land map certified under section 10.3 of the Act as "Bush fire prone land - vegetation category 1", "Bush fire prone land - vegetation category 2" or "Bush fire prone land - vegetation buffer", must take into consideration the general location of the proposed development, the means of access to and egress from the general location and other relevant matters, including the following - (a) the size of the existing population within the locality, (b) age groups within that population and the number of persons within those age groups, (c) the number of hospitals and other facilities providing care to the residents of the facilities within the locality, and the number of beds within those hospitals and facilities, (d) the number of schools within the locality and the number of students at those schools, (e) existing development within the locality that has been carried out under this Policy or State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability, (f) the road network within the locality and the capacity of the road network to cater for traffic to and from existing development if there were a need to evacuate persons from the locality in the event of a bush fire, (g) the adequacy of access to and from the site of the proposed development for emergency response vehicles, (h) the nature, extent and adequacy of bush fire emergency procedures that are able to be applied to the proposed development and its site, (i) the requirements of New South Wales Fire Brigades. (3) In exercising its functions under subclause (1) or (2), a consent authority must consult with the NSW Rural Fire Service and have regard to its comments
Clause 29(2) applies to the proposed development and requires the Court, in exercising the functions of the consent authority, to "take into consideration the criteria referred to in clause 25(5)(b) (i), (iii) and (v)". Clause 25(5)(b) (i), (iii) and (v) provide the following: (5) The relevant panel must not issue a site compatibility certificate unless the relevant panel - … (b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria - (i) 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, … (iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision, … (v) without limiting any other criteria, 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,
Although a site compatibility certificate is not required for the proposed development, these criteria must be taken into account.
It is now well established that cl 26 of the SEPP HSPD, concerning location and access to facilities, is a development standard (see Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 and Australian Nursing Home Foundation Limited v Ku-ring-gai Council [2019] NSWLEC 1205).
Clause 4.6 of the KLEP 2015 applies to development standards arising pursuant to the SEPP HSPD, and allows development consent to be granted notwithstanding the contravention of the development standards. Clause 4.6 provides as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
Clause 31 of the SEPP HSPD also requires a consent authority, in determining a development application made pursuant to Chapter 3, to take into consideration "the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004".
Clause 50 of the SEPP HSPD sets out a number of standards that, if met, cannot be used as a basis upon which to refuse development consent for self-contained dwellings. The proposed development meets each of those standards.

Resident submissions

At the commencement of the site inspection, two of the local residents gave evidence and made submissions with respect to their concerns regarding the proposed development. Those concerns can be summarised as follows:

The mass and bulk of the proposed development is out of character in the street and not appropriate in a low density residential area;
The narrow street width and lack of continuous footpath would be a danger to future residents;
The density of the trees at the rear of the site is a bushfire risk;
There is an inadequate evacuation procedure; and
The impact on Merrivale Lane is unacceptable given its narrow width and existing difficulties with traffic movements along the street.

With respect to the traffic impact of the development, the Traffic and Parking Assessment Report dated 30 June 2016 (Ex A) estimates that the proposed development will result in a net increase in the traffic generation potential of approximately 7 peak hour vehicle trips. This is considered to be a minimal increase in traffic activity, which, in the opinion of Varga Traffic Planning Pty Ltd, "will clearly not have any unacceptable traffic implications in terms of road network capacity". Additionally, the swept turning paths provided by Varga Traffic Planning demonstrate that the Council's 6.7m garbage truck will be able to enter the basement car parking area, pick-up garbage, turn around, and then exit the site in a forward direction, and that a B99 vehicle will be able to enter, circulate and exit the basement in a forward direction at all times. This evidence is not disputed by the Council. Further, the proposed continuation of the footpath from the site to the existing footpath at 125 Merrivale Lane will increase the safety of pedestrians walking along Merrivale Lane towards Bukra Street.
With respect to the issue raised by the residents concerning bushfire risk, the rear of the site is to be managed as an Asset Protection Zone and Ms Younes has agreed to a condition requiring that the landscape plan be amended to comply with the Bush fire risk assessment and certification, and to reflect the need for a complying Asset Protection Zone. As such, I am satisfied that any bushfire risk at the rear of the property will be appropriately managed.
The residents are also concerned with the density and the scale of the proposal. In cl 50 of the SEPP HSPD, a consent authority must not refuse consent to a development application for self-contained dwellings under the SEPP HSPD on the ground of density and scale, if the FSR is 0.5:1 or less. As the FSR for the proposed development is 0.5:1, the proposed development cannot be refused on the basis of its density and scale. Further, as a result of the expert evidence, outlined below, there is no issue with respect to the bulk or appearance of the proposed development in the streetscape.
None of the remaining matters raised by the residents are sufficient to warrant refusal of the development application.

Expert evidence

Expert opinion evidence on urban design and town planning was given by Ms Clare Brown, a town planner engaged by the Council, Mr Peter Smith, an urban designer engaged by the Council, and Mr Andrew Minto, a town planner engaged by Ms Younes. As a result of their joint conference and the amendments to the development application made at the hearing, the proposed development is now agreed by them to have a satisfactory impact on the local streetscape character, satisfactory solar access, and adequate balcony sizes.
Expert opinion evidence was also given by Mr Brian O'Connell, an engineer employed by the Council, and Mr Ben Carruthers, an engineer engaged by Ms Younes. Mr O'Connell and Mr Carruthers agree that the driveway longitudinal sections that now form part of the proposed development show that the gradients for the proposed footpath are compliant with the Australian Standards AS2890 and with cl 26 of the SEPP HSPD, and can work in relation to the existing natural ground levels.
Mr John Travers, an ecologist and bushfire safety expert, gave expert opinion evidence with respect to compliance with the document titled Planning for Bush Fire Protection (dated December 2006), as required by cl 27 of the SEPP HSPD. He notes that the Rural Fire Service ("RFS") issued a bushfire safety authority with respect to an earlier iteration of the proposed development on 18 December 2017. He considers that the amended plans, which are now incorporated in the proposed development, do not alter or modify the land use approved by the RFS and comply with the bushfire safety authority issued by the RFS. He then recommends that a condition of consent be imposed requiring the landscape plans to be amended to comply with his own Bushfire Assessment Report (from October 2017) so that an asset protection zone can be maintained and the whole site managed as an inner protection area. Mr Travers also considers that there are no physical impediments to unobstructed pedestrian access to the rear of the property to aid in firefighting activities, other than a security gate which should provide unimpeded rear access. As a result of Mr Travers' evidence, there is no outstanding issue with respect to compliance with the document titled Planning for Bush Fire Protection or with cl 27 of the SEPP HSPD.
Mr Mark Relf, who is a subject matter expert in accessibility, was engaged by Ms Younes and gave expert opinion evidence with respect to the accessibility of facilities and services within the Turramurra town centre from the bus stop. His evidence is considered below.

Access to facilities and services

The bus stop at Bukra Street is located around 385m from the site, which will be accessed from the proposed development by a suitable access pathway that is to be constructed (where it doesn't yet exist) and upgraded (where it exists) to comply with the requisite gradients specified by cl 26(3). The bus stop is serviced by two routes and is a stop on a loop section on those routes. One of those routes transports passengers to and from the Turramurra bus interchange (577P), and the other transports passengers to and from Grandview Street, Pymble (579). Neither of the two services operates on weekends. Only the 577P, to Turramurra, operates with sufficient frequency on weekdays to satisfy the requirement of cl 26(2)(b)(iii) for availability "both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday".
Both the Turramurra bus interchange and the surrounding shopping precinct, and the Pymble bus stop at Grandview Street, formed part of the site inspection at the commencement of the hearing.
From the Turramurra bus interchange, Rohini Street provides access to the railway station and to the Pacific Highway. A number of facilities and services are located on Rohini Street, including a café, TAB, Australia Post, Turramurra Newsagency and Cutline hairdressing. On the Pacific Highway, there are similarly a number of facilities and services located, including a pharmacy, dentist, a plaza that includes an ATM and IGA supermarket, a liquor store and Turramurra Lookout Community Garden. From the Pacific Highway, Ray Street is home to Turramurra Library and Coles Supermarket (which can also be accessed via the train station), and Kissing Point Road is home to a doctor's surgery and another dentist. All of these facilities and services, which satisfy the types of facilities and services to which access is required in cl 26(1)(a), (b) and (c) are located within 400m of the bus stop at the Turramurra bus interchange.
Ms Brown and Mr Mead agree that the gradients along the Pacific Highway are "generally level". However, Rohini Street falls away from the Pacific Highway and Ms Brown considers that further analysis is required to determine if the pathway along Rohini Street is a suitable access pathway with gradients that comply with cl 26(3) of the SEPP HSPD.
However, even if the gradients along Rohini Street do not comply with the requirements for access in cl 26(3) of the SEPP HSPD, there are connecting bus services at the Turramurra bus interchange that Mr Mead relies on to provide access to the facilities and services located along the Pacific Highway. This includes the 571, 572 and 573 bus routes.
The evidence of Mr Relf is that the bus interchange and Rohini Street footpaths provide appropriate access to the railway station, William Street, the Pacific Highway, Eastern Avenue and Gilroy Lane consistent with AS1428.1 and with the requirements of cl 26(3) and (4). In oral evidence, he confirmed that he took measurements of the gradients of the access pathway, and that his conclusion that the access pathway is compliant with the gradients in cl 26(3) was informed by those measurements.

A private bus is proposed for the weekend

As the 577P bus does not operate on weekends, Ms Younes proposes to provide a private bus to transport residents to and from suitable local centres (at Turramurra, Pymble or St Ives) at least once per day between 8am and 12pm on Saturdays and Sundays (satisfying the frequency requirement of cl 26(2)(b)(iii)). The private bus would have a minimum of 10 seats and would pick up and drop off passengers within the basement of the development. The private bus is proposed to be managed under a Transport Plan of Management dated 24 January 2020, compliance with which will be required by the conditions of consent. In support of this alternate arrangement for Saturdays and Sundays, Ms Younes relies on a cl 4.6 request lodged pursuant to cl 4.6 of the KLEP 2015. That request was revised by Mr Mead in the joint conferencing process, and is annexed to the joint report and dated 31 January 2020.

The Council's position with respect to access to the facilities and services

The Council contends that the proposed development does not meet the requirements of cl 26 of the SEPP HSPD for three reasons. Firstly, the Council says that there is inadequate written evidence to demonstrate that there is a suitable access pathway with compliant gradients available from the public transport services to the facilities and services identified in cl 26(1) of the SEPP HSPD. It submits that Mr Relf's evidence is not adequate, as it does not contain the gradient measurements, or the method by which they were measured. Further, the Council submits that little weight can be placed on the report, because Mr Relf dealt with compliance with the criteria for access to public transport services in cl 26(2)(c) rather than the criteria in cl 26(2)(b).
Secondly, the Council says that cl 26(2)(b) does not contemplate utilising multiple public transport services to access the facilities and services (e.g. by using two or more bus services to complete the journey to the facilities and services). The Council submits that the requirement in cl 26(2)(b) is for there to be "a public transport service", which is in the singular, and therefore requires there to be only one trip to access the facilities and services. The Council submits that if it could be interpreted to allow multiple services, then it would allow an infinite number of bus services and "end up anywhere", which is not the intent of the clause.
Thirdly, the Council contends that the satisfaction required by cl 4.6(4) and by cl 4.6(5) is not met to allow a private bus service in lieu of the requirements of cl 26(2)(b)(iii) for the weekend. Specifically, the Council submits that the provision of a private bus is not consistent with the aims of the SEPP HSPD and with the objectives of Chapter 3, is not consistent with the objectives of the zone, is not supported by environmental planning grounds, would erode the distinction between locating seniors housing in Greater Sydney and outside of Sydney, and would therefore have state wide implications for the operation of the SEPP HSPD such as to allow seniors living in areas not contemplated by the instrument.

The written evidence concerning the gradients from the public transport services to the facilities and services is adequate

In exercising the functions of the consent authority, the Court must not grant consent to the development application unless it is satisfied "by written evidence" that the access complies with the requirements of cl 26. I am satisfied that Mr Relf's expert report, given in accordance with Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 ("UCPR") and with the requisite acknowledgement of the Expert Code of Conduct in Schedule 7 to the UCPR, constitutes that "written evidence". In it he clearly expresses that the Rohini Street footpath, as well as a number of other footpaths, complies with both cl 26(3) concerning the gradients, and cl 26(4) concerning the suitable access pathway.
This written evidence is supported by Mr Relf's oral evidence, in which he confirmed that in order to reach the conclusion that the pathway is compliant with cl 26(3), he took measurements of the gradients. Mr Merlino questioned Mr Relf in cross-examination. These questions did not lead him to change or modify his expert testimony, and did not reveal any shortfalls in reaching that conclusion. Nor is there any evidence that contradicts Mr Relf's evidence concerning the compliance of the footpaths with cl 26(3) and (4). In the absence of contradictory evidence or evident shortcomings in reaching the conclusion that the gradients of the bus interchange and Rohini Street footpaths are compliant with cl 26(3), it is not necessary for the precise measurements to be provided.
Further, contrary to the submission of the Council, Mr Relf's evidence concerning compliance with cl 26(3) and (4) is not affected in any way by his honest mistake in paragraph 3.1 with respect to the unrelated requirement concerning the frequency of bus services.
I am therefore satisfied that the written evidence adequately establishes that there are suitable access pathways with compliant gradients available from the public transport services at Turramurra bus interchange to the facilities and services identified in cl 26(1) of the SEPP HSPD.
As these access pathways provide access to all of the facilities and services identified as being required in cl 26(1), I need not make any findings with respect to whether cl 26(2)(b) allows the use of multiple public transport services to access facilities and services.

The provision of a private bus service and the cl 4.6 request

The specific contravention of the development standard in cl 26 is that, contrary to cl 26(2)(b)(iii), there is no access to a public transport service to and from the proposed development at least once between 8am and 12pm on Saturdays and Sundays. This is because the public transport service that services the bus stop on Buckra Street does not run on the weekends. As a result, a component of the proposed development is to provide a private bus service on the weekends. Pursuant to cl 4.6(4) of the KLEP 2015, consent cannot be granted to a development that contravenes a development standard unless the consent authority is satisfied that certain criteria are met.
In considering whether the state of satisfaction required by cl 4.6(4)(a) has been met, I summarised the relevant principles in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 as follows: "32 Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: • The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), • The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)), • The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and • The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 33 Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters. The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request."
Whilst the submissions made on behalf of the Council were directed to the provision of a private bus, and whether to do so is consistent with the objectives of the zone and the SEPP HSPD, cl 4.6(4)(a)(ii) instead requires consideration of whether the proposed development, as a whole, is consistent with those objectives.
In the present proceedings, I am satisfied that each of the matters required by cl 4.6(4) are satisfied, and that there is therefore power to grant development consent notwithstanding that cl 26(2)(b)(iii) is not complied with due to the absence of public transport services on weekends. Further, for the reasons set out below, none of the matters in cl 4.6(5) warrant declining to exercise that power.
Firstly, I am satisfied that the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances, by demonstrating that the proposed development achieves the objectives of the standard notwithstanding that the transport provided on a Saturday and Sunday will be a private bus rather than public transport. The objectives of the standard are expressed through the aims of the SEPP HSPD and the objectives of chapter 3 of the SEPP HSPD (within which cl 26 is located), and I accept the evidence of Mr Mead, expressed in the request, that there is an assumed objective to provide residents access to the services that they require.
The aims of the SEPP HSPD are set out above at [15]. The written request adequately demonstrates that those objectives are achieved by the proposed development, as the development makes use of the existing infrastructure by proposing a footpath that connects to an existing footpath that provides access to the Buckra Street bus stop, and by relying on the public transport services available to and from Buckra Street on weekdays. Further, the proposal achieves the aims of the SEPP HSPD by increasing the supply and diversity of residences that meet the needs of seniors or people with a disability, whilst also being of good design in circumstances where the design is compatible with the character of the area.
The objectives of chapter 3, which contains cl 26, are set out above at [16]. The written request adequately demonstrates that the proposal achieves the objectives of providing housing "that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability" by providing independent living units with adequate car parking to use a private car, but by also being located within 400m of a bus stop that will be accessed by an appropriate access pathway. Further, the request establishes that the provision of a private bus on the weekends will provide better access to services than the weekend transport requirements under cl 26(2)(b)(iii) and therefore achieves the assumed objective to provide a suitable transport service for residents to access the services they require.
For those reasons, I am satisfied that the request establishes that the objectives of cl 26(2)(b)(iii) are achieved through the compliant weekday access to public transport, and the provision of a private bus on weekends. In doing so, pursuant to cl 4.6(4)(a)(i) and (3)(a) of the KLEP 2015, the request adequately establishes that compliance with cl 26(2)(b)(iii) is unreasonable and unnecessary as the objectives are achieved notwithstanding the non-compliance.
Secondly, pursuant to cl 4.6(4)(a)(i) and (3)(b) of the KLEP 2015, I am satisfied the request establishes that there are sufficient environmental planning grounds to justify the contravention of the development standard. The contravention is the lack of access to a public transport service on the weekend. I accept that the fact that the bus timetable doesn't provide a service on the weekend, together with the benefits, outlined in the request, of providing a private bus service in lieu of public transport, are sufficient environmental planning grounds to justify contravening the development standard.
Thirdly, pursuant to cl 4.6(4)(a)(ii), I am satisfied that the proposed development is in the public interest as it is consistent with the objectives of the standard and the objectives of the zone. The reasons that the proposed development is consistent with the objectives of the standard are outlined above at [54]-[55], where I deal with achieving those objectives notwithstanding the non-compliance with the development standard.
The proposed development is also consistent with the objectives of the zone, which are outlined in [9] above. It is consistent with the first objective as it provides for the housing needs of the community by providing seniors living dwellings as an alternative housing choice for older residents. It is consistent with the third objective as it has a design that the experts agree is compatible with the existing built character of the street. The second objective, which concerns other land uses, is not relevant, but the proposed development is nevertheless not antipathetic to the enabling of other land uses.
Fourthly, I do not accept the Council's submission that the matters that require consideration pursuant to cl 4.6(5) warrant the refusal to exercise the power under cl 4.6(4). The basis for considering these matters arises from cl 4.6(4), which also requires that the concurrence of the Secretary has been obtained. As noted by Preston CJ in Initial Action at [28], the Secretary's concurrence can be assumed for certain development standards as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003. Whilst the Council contends that the conditions in the table to the notice mean that the concurrence cannot be assumed for the development standard in cl 26 of the SEPP HSPD, s 39(6) of the Land and Environment Court Act 1979 nevertheless gives the Court the power to grant development consent without obtaining the concurrence of the Secretary. As such, the power in cl 4.6(4) to grant development consent notwithstanding the contravention of the development standard can be exercised without there being any concurrence from the Secretary. Nevertheless, in Initial Action at [29], Preston CJ stated that the Court should "consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard".
In doing so, none of the matters in cl 4.6(5) warrant the refusal to exercise the power under cl 4.6(4). I do not accept the Council's submission that allowing a private bus service in lieu of public transport on the weekend would erode the distinction between locating seniors housing in Greater Sydney and locating it outside of Greater Sydney, or would have state wide implications for the operation of the SEPP HSPD to allow seniors living in areas not contemplated by the instrument. The proposed development satisfies the requirements of cl 26 on weekdays, with a bus service within 400m that is serviced by a public transport bus route at a frequency on weekdays that is compliant with cl 26(2)(b)(iii). The only shortfall is on weekends, when a public transport service is not available. As such, the non-compliance with cl 26(2)(b)(iii) arises because of the public transport timetable not providing services on the weekend, rather than due to an inappropriate location for the development. The provision of a private bus service on the weekends is an appropriate way in which to meet the needs of the residents in the circumstances of that non-compliance.
For all of the above reasons, I am satisfied that each of the matters required by cl 4.6(4) are satisfied, and that there is therefore power to grant development consent notwithstanding the breach of cl 26(2)(b)(iii).

The site compatibility criteria

The Council also contends that the provision of a private bus service is "infrastructure" that is not sufficiently supported by details of financial arrangements to satisfy the site compatibility criteria in cl 25 of the SEPP HSPD. The Council submits that to satisfy cl 25(2)(b)(iii) of the SEPP HSPD, full costing of providing the service should be provided, and that the evidence of Mr Mead that the cost will be borne through residents in the same manner that strata fees are dealt with, is not sufficient.
I do not accept the Council's contention in this regard. Firstly, I do not accept that cl 25(2)(b)(iii) requires anything more than having regard to the method by which the infrastructure will be financed, and considering any impact that arrangement might have on the compatibility of the proposed development with surrounding land uses. I do not accept that detailed financial costings are required. Secondly, I accept that the evidence of Mr Mead is sufficient to outline the method for financing the provision of the private bus service. I accept his evidence that the service cost for the provision of the bus service is appropriately borne by the occupants, not unlike other ongoing costs associated with management of a strata development such as cleaning costs, garden maintenance and so on. I accept that ongoing management fees, set out in a variety of structures, are common to most seniors housing developments and the cost will be shared across many owners in the same way as other management fees. This does not create any impact on the compatibility of the proposed development with surrounding land uses. No other issue is raised by the Council with respect to the site compatibility criteria in cl 25 of the SEPP HSPD.

Appropriateness of a condition of consent concerning the private bus service

I accept the submissions made on behalf of Ms Younes and the evidence of Mr Mead that the continuity of the private bus service on the weekend is appropriately secured through a condition of consent. I accept the submission that such a condition is precisely how it would be secured for developments outside of Greater Sydney that provide access to facilities and services through a private bus service in compliance with cl 26(2)(c). There are also three examples where the Court has imposed such conditions in the past, in different circumstances: Brewster Murray Pty Ltd v Northern Beaches Council [2019] NSWLEC 1152; Palm Lake Works Pty Ltd v Ballina Shire Council [2019] NSWLEC 1479; and Australian Nursing Home Foundation Ltd v Ku-ring-gai Council. I accept the evidence of Mr Mead that the Transport Plan of Management and the condition of consent will ensure that the service is provided for the life of the development.

The outcome of the appeal

The development is an appropriate application of the SEPP HSPD and an appropriate response to the site's location and context. Given that the other planning controls of the SEPP HSPD and the KLEP 2015 are met and the Council has raised no other contention on the grounds of which development consent should be refused, there is no basis to refuse the development application and it is granted accordingly subject to the conditions of consent as agreed between the parties.
The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for the demolition of existing structures and the construction of a seniors living development comprising 19 residential dwelling units, basement parking and associated landscaping, at 117-121 Merrivale Lane, Turramurra, subject to the conditions of consent in Annexure 'A'. 3. Exhibits 1, 2, 4, 5, 7, K and M 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: 05 March 2020

At a glance

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Decision date

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Judgment (14 paragraphs)

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Cases Cited (7)