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NSW Crest

Land and Environment Court
New South Wales

Medium Neutral Citation:
Tiffany Developments v Minister for Planning and infrastructure [2012] NSWLEC 1000
Hearing dates:
14-21 November 2011
Decision date:
10 January 2012
Jurisdiction:
Class 1
Before:
Morris C
Decision:

Appeal dismissed

Catchwords:
Part 3A Concept plan application; seniors living; site suitability; consistency with strategic planning objectives and character of the locality; access to services
Legislation Cited:
Environmental Planning and Assessment Act 1979; State Environmental Planning Policy - Housing for Seniors or People with a Disability (2004); of State Environmental Planning Policy (Major Development) 2005; Warringah Local Environmental Plan 2000; Warringah Draft Local Environmental Plan 2010; State Environmental Planning Policy No. 65 - Design Quality for Residential Flat Development; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy No 55 - Remediation of Land; Environmental Planning and Assessment Regulation 2000; Land and Environment Court Act 1979
Texts Cited:
Sydney Metropolitan Strategy 2005; Metropolitan Plan for Sydney 2036
Category:
Principal judgment
Parties:
Tiffany Development Pty Ltd (Applicant)

Minister for Planning and Infrastructure (Respondent)
Representation:
Counsel
Mr C McEwan SC with Mr M Staunton (Applicant)

Mr P Clay SC with Ms A Hemmings (Respondent)
Solicitors
Pikes Lawyers (Applicant)

Department of Planning (Respondent)
File Number(s):
10374 of 2011

Judgment

1Tiffany Developments seeks Concept Plan approval under Part 3A of the Environmental Planning and Assessment Act 1979 (the EPAAct) for a Seniors Living Development at Oxford Falls Road, Oxford Falls. The Minister for Planning has determined the proposal by refusal and Tiffany has appealed that decision pursuant to the former provisions contained within s75Q(2) of the EPAAct.

2The issues in the case are whether the development would be consistent with the strategic planning intent for the site, whether the site is suitable to be developed for the purpose of seniors living, particularly with regard to those matters contained within State Environmental Planning Policy - Housing for Seniors or People with a Disability (2004) (SEPP Seniors) and whether the application is in the public interest.

Background

3The application was initially lodged in 2005 which was prior to the repeal of the Part 3A provisions of the Act (October 2011) and, in accordance with the provisions of State Environmental Planning Policy (Major Development) 2005 (SEPP Major Projects) that applied at the time, the then Minister for Planning, the Hon. Frank Sartor, declared the application to be a project for the purposes of s 75B of the Act, namely Clause 13 Construction Projects as defined in Schedule 1 of the SEPP. This was because it is a residential project with a capital investment value of more than $50million that the Minister, at that time, determined was important in achieving State or regional planning objectives. The date the Minister signed the opinion was 1 December 2005 and Tiffany lodged the initial Concept Plan Application on 16 May 2006 however it was not until 30 October 2008 that an amended Concept Plan Application was lodged. It is that application that is the subject of this Appeal.

4The application was exhibited from 14 January 2009 to 28 February 2009 and during that period the Department of Planning requested that Tiffany prepare a Preferred Project Report. That report was lodged with the Department on 16 June 2009 and provided information about the proposal and includes reports on flora and fauna, riparian areas, water quality management, stormwater concept plans, bushfire hazard assessment, visual impact, accessibility and detailed architectural plans of the proposed development. Whilst the Concept Application includes considerable detail, it is seeking approval for the concept proposed rather than a development consent. In the event that the concept application is approved, the usual development application and assessment process under Part 4 of the EPAAct would apply.

5The application determined proposed the use of the site for Seniors Living, office, retail, recreational and open space purposes and adaptive reuse of existing buildings on site for ancillary services; the construction of 20 buildings ranging in height from 3-4 storeys comprising 393 self care dwellings, 100 serviced apartment dwellings and a 80 bed high care (nursing home) facility with 607 car parking spaces comprising 547 residents and 60 visitor spaces.

6The Minister for Planning at the time, the Hon. Tony Kelly refused to give approval for the concept plan on 14 February 2011. The reasons for refusal are:

(1)The proposal does not satisfactorily demonstrate it would meet the sustainability criteria contained within the Department of Planning's former Sydney Metropolitan Strategy 2005 and Metropolitan Plan for Sydney 2036 to justify development of identified "non-urban" land.

(2)The proposal is located on land which has poor access to public transport, services and facilities and is likely to result in social isolation and adverse impact on the well being of future seniors residents.

(3)The proposal is inconsistent with the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

(4)The proposal is incompatible with the key planning directions for the area including the Desired Future Character Statement for Oxford Falls Valley "B2 Locality - Oxford Falls Valley" as identified in the Warringah Local Environmental Plan 2000. (WLEP 2000)

(5)The proposed land use would be prohibited under the "E3 Environmental management" zone pursuant to the Warringah Draft Local Environmental Plan 2010. (DWLEP 2010)

(6)The height, bulk, scale and density of the proposal will have an unacceptable visual impact on the semi-rural/residential character of the Oxford Falls Valley.

(7)The proposal in not in the public interest.

The site and its context

7The site is located on the western side of Oxford Falls Road in the Oxford Falls Valley and comprises 6 parcels of land and a portion of Barnes Road reserve (an unsealed road which provides private access to a number of residential properties) totalling 13.6 hectares. The valley lies at the junction of the suburbs of Frenchs Forest, Oxford Falls and Beacon Hill.

8The main vehicular access to the site is off Oxford Falls Road, at the eastern edge of the site. Rural residential properties lie to the north and south and residential dwellings to the west and south-west. The site is currently owned by a number of private persons and the Australian Tennis Academy.

9The site contains five residential dwellings, one on each of the existing lots, with the exception of Lot 1110, which contains the Australian Tennis Academy building and 12 tennis courts. The residential dwellings are on large allotments (minimum 1.7 hectares) and contain numerous sheds and other ancillary structures including paddock fencing and are used for semi-rural/residential purposes.

10The central portion of the site has been cleared and consists of grass species with some scattered trees. A vegetated escarpment lies to the west, south and east of the site and is identified as Bushfire Prone. Riparian vegetated corridors run east/west and south/east adjacent to the Middle Creek tributary and along the southern side of the existing tennis courts. A tributary of Middle Creek runs north/south through the site and drains downstream into the Narrabeen Lagoon located approximately 3.5km to the north-east. The creek has variable channel characteristics and the section that runs through the Academy site has been substantially modified as a narrow V shaped concrete channel bed. Two natural drainage lines) secondary tributaries) branch from the Middle Creek tributary, both constructed channels with V shaped concrete beds.

11The topography of the site slopes from a highpoint along the western edge at RL113 down to a low RL81 at the cleared central area of the site, before running steeply up to Oxford Falls Road. The western and eastern portions of the site are relatively steep with the central portion gently undulating.

The proposal

12The application is for concept approval of a staged Seniors Living Development that would be constructed on the valley floor and comprise 15 x 3 storey apartment buildings, 5 x 4 storey apartment buildings providing for 393 self care and 100 serviced apartment dwellings and an 80- bed high care nursing home facility. In addition to the residential accommodation a range of services and facilities would be provided on the site in new buildings. These are:

  • Restaurant/bistro
  • Convenience store
  • Service retail space (e.g. hair/beauty)
  • Doctor's rooms
  • Gymnasium
  • Theatre
  • Heated pool
  • Craft, games, library and lounge room

Those facilities would be provided in the first stage of the development within and at the ground and first floor levels of Building 9, a centrally located four level building. In addition to the facilities listed above, building 9 would incorporate the nursing home, (60 rooms with a total of 80 beds) and the 100 serviced apartments.

13The current building associated with the Tennis Academy operations and two of the existing dwellings would be altered to provide additional facilities. The Academy buildings would be used for administration/marketing, serviced offices, staff accommodation and an apartment for a nursing sister. A large house at the southern end of the site, currently accessed from the made portion of Barnes Road (the Spali house), would be adapted for use as a Club House and would include a billiards area, library, lounge, lecture theatre and gardener store room. A smaller house to its north-west (the Harvey house) would be used as a caretaker/security residence.

14A series of roads would connect the buildings with the main site access provided at two locations from Oxford Falls Road, one in the location of the existing unmade road reserve and the other in a location similar to that which currently provides access to the Academy. Accessible pathways would also connect the accommodation buildings however, due to the steep slope of the land to the 'Spali' amenities building, it is necessary to utilise a bridge that would connect the rooftop garden on building 9 to a pathway that would comply with the required grades to access the facilities. Similarly, pedestrian access to apartments is separated from roads via a series of above and below ground connections including through basement carparking areas.

15As the development involves use of that unmade portion of Barnes Road, an application to close and purchase the land would be necessary to allow the development to proceed. It is not intended to obtain vehicular access to the made section of Barnes Road other than for emergency purposes.

16The buildings are setback from Oxford Falls Road between approximately 75-113 metres and, apart from the adaptive re-used dwellings, are concentrated in the centre of the site in an area that would be benched to achieve the necessary grades to facilitate accessible pathways. Whilst that area contains some vegetation, it is limited and the development area has been defined by the necessity to retain and enhance the existing riparian corridors that bisect the site. The steeper slopes of the site limit opportunities for development of seniors housing due to the need to provide accessible pathways.

17Overall, the development proposes a total of 393 self-care dwellings of which 197 are two bedroom units and 196 contain three bedrooms. Dwelling sizes range from 82sqm to 125sqm and all include private balcony areas and lift access. Gross floor area (GFA) of the development is 63,550sqm. Parking for 607 cars would be provided with resident parking provided in the basements accessible to all buildings except building 9 and 40 visitor spaces provided adjacent to the proposed administration building in the location of the current Academy carpark.

18The application includes proposals to expand the riparian corridors and provide asset protection zones to address bushfire issues. In addition, amenity planting around the buildings and additional screen planting to the Oxford Falls Road frontage is proposed.

Part 3A as it applies to the application

19In determining an application under the Part 3A provisions, those matters which must be considered by the Minister, and in this case the Court, are detailed in s75O of the Act. The mandatory matters are listed in subclause 2 and are:

(a) the Director-General's report on the project and the reports and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and
(b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and
(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

Subclauses (b) and (c) are not relevant in this case as the applicant is not a public authority and the PAC has not reviewed the application.

20In addition to those matters, subclause 3 states:

In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

The effect of this clause is that it is not mandatory to consider environmental planning instruments however, these may be considered in determining whether to grant concept approval.

21The Director General's Environmental Assessment Report did consider a number of environmental planning instruments, in particular SEPP Major Projects, SEPP Seniors, State Environmental Planning Policy No. 65 - Design Quality for Residential Flat Development (SEPP 65), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), WLEP2000 and DWLEP2010.

22The Minister may approve the concept plan for a project or can approve the concept plan with such modifications as may be determined.

23The Court however does not have such power. Clause 75P(3) says that if the Court allows the appeal, the Minister is to approve the concept plan in a manner determined by the Court. The Court does not have jurisdiction to approve the concept plan or to make or direct the Minister on any determination that may be made under section 75P when giving approval for a concept plan.

The issues

24The Statement of Facts and Contentions filed for the Minister identifies four contentions and those are:

(1)The proposed seniors living development is inconsistent with the strategic planning objectives for the Site.

(2)The site is not suitable for the proposed seniors living development.

(3)The proposal is inconsistent with SEPP Seniors.

(4)The proposed seniors living development is not in the public interest.

Public submissions

25Evidence from a number of objectors was heard on site on the first day of the hearing. During exhibition of the application, the Department received a total of 470 submissions, 8 from public authorities and 462 from the general public and special interest groups (381 in opposition and 81 in support). Two community petitions (1478 signatures in total) were also submitted objecting to the proposal, one of those from the Oxford Falls Action Group. Tiffany, prior to the end of the notification period, provided 32 letters and a petition with 1081 signatures in support of the proposal.

26Departmental officers summarised the key issues raised in those objections as follows:

  • Out of character with rural locality 51.2%
  • Capacity of existing road network 50.4%
  • Reject (no specific objection) 46.5%
  • Impact on wildlife (flora and fauna) 46.2%
  • Risk to occupants during bushfire or emergency 40.2%
  • Impact on natural waterway 38.3%
  • Bulk and scale 37%
  • Impact on existing infrastructure 35.4%
  • Environmental sensitivity 30.7%
  • Overrides council's controls 19.9%

27The submissions in support considered the proposal would provide economic benefits to the region and address the need for aged care housing in the area.

28Those residents who gave evidence to the Court addressed environmental and water quality issues, concerns in regard to the impact on the Narrabeen Lagoon, character of the development and a view that it did not fit within the semi-rural location and was inconsistent with the strategic planning and current planning controls for the area, bushfire concerns, particularly with regard to evacuation, localised flooding, access and traffic and development not suiting the demographics of the area.

29In addition to the evidence heard on site the Court, in the company of the parties and their experts, inspected a number of residential properties in Barnes Road to the south of the site and a property in Oxford Falls Road to the immediate north and observed another to the south. Those residents were concerned in relation to flooding, visual impacts and intrusion, the use of a common right-of-way that services the "Harvey" dwelling and the development not fitting with the character of the area.

30Day 1 of the hearing included the site inspection, hearing resident objections and a bus trip of the surrounding area including local neighbourhood shops (Skyline shops and Forestway Shopping Centre) two schools (St Pius X sports field and hall and Oxford Falls Grammar) a Church (C3 Church), the proposed Northern Beaches Hospital site which is to include a specialised centre adjoining it and two retirement villages located within the Oxford Falls locality (Maybrook village and Glenaeon Village).

The evidence

31Expert evidence was heard from

                                  For the Minister                          For Tiffany

Social Planning       Dr J Stubbs                                 Mr G Porter
Accessibility                                                                  Mr M Relf
Urban Design          Ms C Brown                                Mr N Dickson
Planning                   Ms C Brown                                Ms A McCabe

32In addition, a number of expert reports in relation to bush fire, emergency management, drainage and water quality, visual impacts, flooding and economic analysis were tendered to assist the Court in assessment of the application.

Strategic Planning

33The particulars of this contention raised by the Minister are that the site is not identified in a number of strategic planning documents prepared by the state government for the purpose of guiding land use planning within the Sydney Metropolitan area. Those documents are The Metropolitan Plan for Sydney 2036 (Metro2036) and draft Sydney North East Region Subregional Strategy (DSNERSS) and the Minister says that these documents do not identify the site as being suitable for future urban development or residential release. The Minister also noted that the site was not included in the Metropolitan Development Program 2008/9, a program which benchmarks land available for residential release against lot production targets.

34In addition, the site is currently classified as non-urban land due to it being within the B2 Oxford Falls Valley locality under the provisions of WLEP2000 . Whilst housing for older people or people with disabilities is not prohibited on the site under this plan, the Minister says that the development as proposed would not be compatible with the Desired Future Character of the locality and accordingly, consent would not be granted under the provisions of that plan for that reason.

35SEPP Seniors is also a matter that was considered in determination of the application and under that policy, the site is also classified as non-urban land but, with the inclusion of the 'Spali' and 'Harvey' properties, adjoins land zoned for urban purposes. The Minister says that whilst development for seniors housing is permitted, it is subject to demonstration of the compatibility of the site for such use and that the site is not compatible as seniors housing.

36At the time of determining the application, DWLEP had been exhibited in accordance with Warringah Council's resolution to include the site and the entire Oxford Falls Valley locality within zone E3 Environmental Protection. Under that draft plan the proposal would be prohibited. The Minister said that the making of the draft plan was awaiting gazettal and therefore its making was certain and imminent.

37It is noted that since the Minister determined the application, the zoning of the land remained in dispute. Warringah Council maintained that the E3 zoning was appropriate however, the Department of Planning, having received a number of objections to that zoning, had determined that further planning studies were required to determine whether that locality had any potential for residential land release. Warringah Local Environmental Plan 2011 was gazetted after the conclusion of the hearing in this case however prior to judgment being delivered. It is relevant to note that the Oxford Falls locality was a deferred matter under the 2011 plan and accordingly, remains subject to the provisions of WLEP2000.

38The planning experts agree that Metro2036 and DSNERSS are strategic planning documents that set the direction in a broad policy sense rather than tools used to assess development applications. Whilst they say that they are part of a suite of documents that are applicable to the Part 3A assessment process they say that the more appropriate tools for assessing the proposed concept plan are the relevant Environmental Planning Instruments, being SEPP Seniors and WLEP2000. DWLEP2011 was also considered relevant at the time.

39Ms Brown says that the documents do provide some guidance in determining whether the site is suitable for the development and says that Metro2036, through Action H1.1 seeks to ensure the liveability of the city and future development within it by the incorporation of equity, liveability and social inclusion as a strategic direction in the subregional strategies and implements through local environmental plans. Specifically it requires LEP provisions to be drafted to ensure new communities are integrated with, and connected to, existing local communities and local economic and social opportunities...built environments are safe and based on active transport and universal accessibility...the needs of vulnerable people are considered...social infrastructure and services are adequate, appropriate and accessible.

40Ms McCabe says that Metro2036 recognises the population is aging and seeks the provision of housing designed to suit the needs of various resident populations and whilst acknowledging that the plan seeks to accommodate 80% of all new housing within walking distance of centres says that innovative new housing is needed across the city to provide a well-designed mix of types, tenure, prices, sizes, room mix and shaped and more medium rise housing is required in the right locations. She says that the site is well located to build upon the locational opportunities of the future specialised centre planned for Frenchs Forest (near the intersection of Warringah Road and Wakehurst Parkway) and can meet the aims and key directions of DSNERSS of increased housing choice and enabling communities to age in place.

Character and Compatibility

41WLEP 2000 is the local environmental planning instrument that applies to the land and the site is within the Oxford Falls Valley locality under that plan. Housing for older people or people with disabilities is permitted with consent on the site provided the development complies with the minimum standards set out in clause 29 of WLEP 2000. Those standards relate to building height, density and scale, landscaped area, parking including visitor parking and private open space. Whilst not a mandatory consideration in the assessment of this application under Part 3A, an application under Part 4 would require a consent authority to be satisfied that a development is consistent with the desired future character described in the relevant locality statement. The desired future character (DFC) for the Oxford Falls Valley 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 ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.
The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms 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.

42Ms McCabe says that because housing for older people is a Category 2 use under WLEP 2000, it is difficult to understand that the use could be incompatible with the DFC however, to test this, she says that the question of consistency is one of 'fit'. Ms Brown says the starting point of the DFC is that the present character of the Oxford Falls Valley location shall remain unchanged except in specified circumstances. She says the present character has two key elements, that represented by the vegetated ridge tops and slopes and secondly that of a rural residential locality supporting a range of housing styles and rural built forms on lots of varying size (but not of an urban residential scale) which, in recent years, has seen the introduction of educational establishments and places of worship on the floor of the valley. On the broader scale, there are historical examples of seniors living developments however notes that currently, none are proximate to the site.

43Ms Brown says that the development, with its built form of 20 three and four storey buildings concentrated in the central portion of the site, on a site cut, filled and benched, in some instances with level differences up to 5m, re-contouring waterways, providing resident access by way of ramps, and pathways at street level, underground, through buildings and via an elevated walkway springing from the top of a building presents a character more closely resembling the residential flat buildings to be found within the suburbs of Dee Why and Collaroy rather than the low intensity nature of development in the Oxford Falls Valley locality to the low scale residential development in the surrounding suburbs of Forestville and Frenchs Forest. She says that the proposal does not fit within the site or locality, will transform the site and concludes the proposal is not consistent with the DFC for the Oxford Falls Valley locality nor is it a compatible use for the site.

44Ms McCabe analyses the DFC and concludes that, for development to be compatible, it does not need to be the same and that the location of the site, adjoining urban development, but in a semi-rural environment means that development forms will be different from detached housing however, the key landscape and topographic features of the site, and its vegetated nature are the elements that identify the character of this specific portion of the B2 locality and that these characteristics are retained and enhanced as part of the development. She identifies the dominant elements of the locality as the vegetated slopes and ridges, development concentrated in cleared valley floors and extensive vegetated setbacks to public roads and says that any development needs to reflect those elements, occur in pockets or parcels so as to reflect the characteristic pattern of development and that any built form needs to sit beside potential housing development having densities of 1 dwelling per 20 hectares and of essentially 2 storeys in scale. She describes the development as being too large to be developed in an urban or suburban setting due to the large land area and one that does not fit the more regular and consistent pattern of urban development but is campus style buildings set in a landscaped setting. Her assessment of the population eventually on site is in the order of 1,000 persons (residents and employees) and compares this to a small village or town.

45Because of the buildings' location in the valley and behind extensive vegetated screens, Ms McCabe is satisfied that the building form can fit the character of the area and whilst not 2 storey scale, says the topography of the site and the vegetated slopes ensure the development is not readily viewed from public places and is of a form consistent with educational structures, sits comfortably on the site, when viewed in the context of the surrounding development is an appropriate fit with minimal impact on surrounding development and is compatible with its surrounds.

Site suitability

46Particulars in this contention relate to the sustainability criteria within Metro2036 that require non-urban land to be appropriately serviced by public transport and to provide access to services that meet the demands of residents. In addition, accessibility within and to and from the site, delivery and affordability of services and social isolation/integration are issues as is the safety of occupants of the development in the event of a bushfire however that issue was not pressed by the Minister due to further work done during the hearing that has led to the development of a revised Emergency Management Plan. That plan, subject to further amendments agreed by experts in bushfire and ecology, is now agreed by the parties to be satisfactory. It is also agreed that any development application that was lodged following the grant of a concept approval, should the appeal be upheld, would require the development to be designed to comply with the requirements of the document titled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service. Similarly, a contention in relation to the site being flood prone was not pressed however the extent of riparian zones adjacent to the creeks that bisect the site was not agreed and this affects the location of the proposed buildings as the Minister requires greater setbacks than those proposed by Tiffany.

Accessibility

47Mr Relf provided evidence to the Court that the site would be fully compliant with the relevant Australian Standards for pathway access throughout the facility and the accessibility requirements contained within Schedule 3 of SEPP Seniors, that access would meet the individual needs of residents, that golf carts would be a supplementary aspect of the development and not the main means of accessing facilities including Spali House. He did not consider the routes to facilities to be circuitous and said that the focus of the design in integrating Building 9 was appropriate as it facilitated integration of residents.

48It is agreed that the site is not serviced by public transport, the nearest bus stop providing access to a neighbourhood centre (Skyline, Forest Way, Forestville, Dee Why) being 800m from the site entrance, uphill at Iris and Myra Sts and 1.1m to the bus stop that services the closest regional centre (Warringah Mall). Chatswood is also accessible by a bus that stops at the Iris/Myra Street bus stop. Dr Stubbs said walking to those bus stops is not accessible due to distance, steep grades, lack of footpaths and the road environment and for that reason the site is not suited for development as seniors housing. Mr Porter said that all of these centres would be accessible to residents by utilising the buses to be operated from the development.

49Access to services would be provided either by use of the facilities and services to be provided on-site, by private vehicle if residents could drive or had access to a car or by buses to be operated by the managers of the proposed development. The experts agreed that the cost of providing the necessary on-site services and the buses would be funded by the operator and reflected in management fees imposed and it was agreed that these costs would be likely to be in the vicinity of $100-150 per week. Mr Porter said that these costs are not unreasonable given the quality of development proposed and likely demographics/socio-economic status of occupants. He said that the development was targeted to the "upper end" of the market and the prospective purchasers would expect high quality facilities and would not choose to enter the facility if they could not afford to pay the associated costs.

50Dr Stubbs said that despite the range of services to be provided on site, residents will need or wish to leave the development to access the full range of services required and that there is a need to ensure that a choice of service provider can be accessed. She says that choice is important in the event that availability, quality, appropriateness or cost of onsite services is an issue for residents, in the short or long term, particularly as they age and become less mobile. Mr Porter says that the proposed on-site services and facilities would be the best available in any retirement village in the Warringah local government area and would readily meet the needs of residents.

51Mr Porter said that the bus services provided by the operator would satisfy all residents' needs and if demand justified it, could be expanded to meet any additional need. Dr Stubbs said that the frequency of service is inadequate and not a substitute for the independence, equity and certainty provided by access to a public bus. She says that this limits the ability of residents to 'age in place' and that successful aging in place is facilitated by easy and convenient access to the full range of services and facilities likely to be required as an older person's needs change and the ability of an older person to maintain maximum independence, interaction with the wider community and opportunities for a healthy lifestyle. She say that access means availability, physical accessibility, appropriateness and affordability and that the environment within which the site is located, and the site itself, does not lend itself to such key principles of aging in place and acts to constrain such opportunities. Mr Porter says the proposal would offer the best ageing in place facilities in the area and would be one of only two contemporary retirement villages offering an onsite nursing home. In addition, it would provide a wide range of services and facilities to the extent that residents would not need to leave the site to meet their needs unless they chose to.

52Dr Stubbs says that the location of the site is a substantial barrier to providing opportunities for participation and social integration with the wider community and that the inability to walk from the site to the adjacent urban areas acts to intensify the perception and the reality of isolation and segregation from the wider community. Mr Porter rejects this suggestion and says that residents will be provided with sufficient opportunities for social interaction.

SEPP Seniors

53A number of the particulars in this contention overlap those detailed in the previous contentions, in particular the issue of access to shops and services and lack of public transport. SEPP Seniors also requires a test of compatibility with the surrounding land uses, in that case, clause 29(2) requires consideration of the criteria referred to in clause 25 (5) (b) (i), (iii) and (v). Specific consideration of 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; 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 and, 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 is required.

54Consideration of the character of the locality is a common theme throughout the planning instruments that may be considered in determining an application under Part 3A and this is reinforced in clause 33(a) of SEPP Seniors which requires that t he proposed development should recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area. Ms McCabe says that these provisions are intended to address a smaller or narrower context that the DFC of the Oxford Falls Valley locality and appear to be drafted to address more urban environments and issues associated with development fitting within a streetscape. She says that the desirable elements of the location are as described in [42] and that the proposed development would reinforce those qualities and enhance the natural features including the riparian corridor.

55Ms Brown says that the proposal does not seek to incorporate the open rural character of the locality but rather, seeks to modify that character through the introduction of a series of above and below ground pathways, roadways, connection podiums and basement level car parks and 20 three and four storey buildings. She says the site is not in transition to an urban area and if it were, it would be inconsistent with the adjoining area as the built form of the proposal is more intense than the adjoining urban area.

56There is no dispute between the parties that the numerical standards contained within SEPP Seniors are met, or could be met in any future development application, with the exception of the height controls and it is agreed that the height of the proposal exceeds both the 8m and two storey height control.

Public interest

57The Minister's contention with regard to public interest is that the proposal is contrary to the public interest due to the matters raised in the public, council and government agency submissions in response to referral/notification of the application. The issues raised in public submissions are detailed at [26 and 27] above and it is noted that the Department of Planning received both objections to the proposal and submissions in support from the public and a number of submissions from government agencies. None of those agencies objected to the proposal but have provided advice of matters that should be addressed if the development was to proceed.

58The Office of Water, in correspondence dated 23 July 2010, had provided advice in relation to riparian zones and this matter had not been agreed at the conclusion of the hearing. The modifications to the concept plan sought to be imposed by the Department of Planning required a 30m wide riparian corridor to be established along either side of the Middle Creek tributary comprising a 20m wide Core Riparian Zone (CRZ) and a 10 metre wide vegetated buffer (VB) with the Asset Protection Zone (APZ) located outside the CRZ and VB. In addition, drainage line T2 was required to be rehabilitated with a 20m riparian corridor comprising a 10m wide CRZ and a 10m wide VB with a minimum 10m wide VB provided to each other watercourse and drainage line on site. These conditions are consistent with the advice from the Office of Water and have significant implications to the footprints of the proposal and would require considerable modification of the design of the project if adopted. Mr McEwan for Tiffany submitted that the Office of Water had agreed to lesser riparian corridors from those detailed above however, at the conclusion of the hearing, no evidence of support to those changes had been provided and the Court has been requested to make findings in relation to the issue.

59The site is located within the Warringah local government area and Warringah Council has objected to the proposal. The reasons for its objection are summarised as being that the development would be inconsistent with the DFC for the locality, does not satisfy the provisions of clauses 57, 60 and 66 of WLEP2000 with regard to development on sloping land, watercourses and aquatic habitat and building bulk, is not consistent with the provisions of SEPP Seniors having regard to the isolation of elderly residents from the general community and the distance from facilities and suitable public transport, is not in keeping with the principles under SEPP 65, the site is not suitable for seniors housing development, the design of the buildings are inappropriate for the area, environmental impacts, particularly flora and fauna, water quality, flooding, bushfire, riparian corridors and stormwater management, traffic, loss of tennis and horse riding facilities, excessive scale, minimal community benefit and inconsistency with strategic direction.

The Director-General's Report

60The Director-General's Report is required under s75I of the EPAAct and the report relevant to the application is dated October 2010 and was provided to the Court as part of Exhibit 1. That clause details what is to be included with the report as follows:

(a) a copy of the proponent's environmental assessment and any preferred project report, and
(b) any advice provided by public authorities on the project, and
(c) a copy of any report of the Planning Assessment Commission in respect of the project, and
(d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and
(e) except in the case of a critical infrastructure project-a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and
(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and
(g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.

61In addition, clause 8B of the Environmental Planning and Assessment Regulation 2000 sets out matters that must be included in the report to the Minister. They are:

(a) an assessment of the environmental impact of the project,
(b) any aspect of the public interest that the Director-General considers relevant to the project,
(c) the suitability of the site for the project,
(d) copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.

62All of the information required has been provided to the Court. The report prepared by the Director-General includes 7 chapters and 5 appendices as follows:

Chapter 1                        Background

Chapter 2                        Proposed Project

Chapter 3                        Statutory Context

Chapter 4                        Consultation and Submissions

Chapter 5                        Assessment

Chapter 6                       Conclusion

Chapter 7                       Recommendation

Appendix A                    Sustainability Criteria

Appendix B                    Statutory Assessment and Summary

Appendix C                    Environmental Assessment

Appendix D                    Submissions

Appendix E                    Proponent's Response to Submissions

63The recommendation put to the Minister was to refuse the concept application and the reasons that it was not supported are contained within the Executive Summary and reflect the grounds of refusal.

64The Minister accepted the recommendation and the reasons for refusal are in accordance with those detailed at [6] above.

Conclusion and findings

65In determining the application, s39(4) of the Land and Environment Court Act 1979 (the LECAct) requires the Court to have regard to that Act, or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. The EPAAct is of particular relevance to the application but is not the only Act that must be considered, regard must be had to all other Acts that relate to the application. Similarly, state planning policies and local environmental plans should also be considered however it is not necessary that they are applied in the same manner as those instruments would be applied in consideration of an application under Part 4 of the EPAAct.

66The Court has reviewed the extensive documentation submitted with the application, the submissions received and that prepared by the Department of Planning in relation to the application along with the evidence provided both in the form of expert reports and during the hearing.

67It was agreed between the parties that the contentions could be grouped into the strategic planning considerations, the site suitability/fit and the public interest.

68The making of WLEP 2010 has meant that the determination of the site zoning has been deferred rather than be included within the E3 Environmental Management zone proposed by the council. The effect of WLEP 2010 being made is that the site remains subject to the provisions of WLEP2000 and those considerations relevant to the Oxford Falls Valley locality. It is not appropriate for the Court to speculate on the outcome of those further studies to be conducted to determine the ultimate zoning of the site but rather to have regard to the current planning controls and the fact that at some time in the future those controls may change however that change is neither imminent nor certain and the type of change is not known.

69The guiding strategic planning documents, Metro2036 and DSNERSS, are agreed by the parties to be tools that guide policy development and inform state and local planning policies. It is likely that they will be considered in the review of the site's zoning and the Oxford Falls Valley locality generally and also assist in the preparation of the planning instrument that will reflect the site's ultimate zoning. For this reason, it is appropriate to expect that any change to the zoning would be consistent with the views and directions contained within those documents. No further conclusions on the strategic direction can be drawn.

70A review of the evidence shows that the site, despite having an area of 13.6ha, is constrained by its slope, the location of watercourses, bushfire risk and the need to protect vegetation. This means that the only area suited to development for seniors housing is the central portion of the site between the main watercourses. The proposal is to concentrate the development within that area which has a significant footprint, much larger than any other development observed within the locality. The gross floor area proposed is 63,550 sqm and that represents a FSR of 0.45:1. The residential component of the development would be contained within 20 buildings that are three and four storeys in height designed in what has been described as a 'campus style' within a landscaped setting.

71Whilst consideration of the planning controls that apply to the site is not a mandatory consideration in determination of the application, it is appropriate that regard is had to those planning instruments. In particular, the form of development should be considered with regard to that which would be likely to occur under those controls. The DFC for the Oxford Falls Valley is a relevant consideration and, as described in [41], contemplates that the area will remain unchanged except in circumstances specifically addressed and that any future development would be low intensity, low impact uses with the natural landscape including landforms and vegetation protected and where possible enhanced and buildings located and grouped in areas that will minimise disturbance of vegetation and landforms and designed to blend with the colours and textures of the natural landscape. In addition, development is to ensure that natural watercourses are maintained.

72Having considered the evidence provided by the planning experts, I note that both say that the development is not low intensity. Ms McCabe says that it is low impact however Ms Brown disagrees. It is apparent from the site inspection that the scale and intensity of the proposal far exceeds any development within the locality. The area to be developed far exceeds that built form observed at the school sites and it is noted that those schools are not the common form of development within the locality. The most characteristic form of development is single detached housing within landscaped settings. The height of the proposal, at 3 and 4 storeys, exceeds that contemplated under the council's controls and that envisaged in SEPP Seniors and is not representative of the locality. The 12-15m separation of buildings also differentiates the proposal from that established in the area as the buildings are low scale, separated by much greater distances and sited so as not to adjoin neighbouring properties.

73Similarly, the landform will be altered substantially despite the fact that the development is concentrated on the valley floor as excavation and filling up to 5m is necessary to achieve compliant gradients for accessibility throughout the proposal.

74Regardless of the width of the riparian zones required to satisfy the requirements of the Office of Water, I consider that the development does not do enough to minimise site disturbance and enhance the natural watercourses. The roadways and buildings are in close proximity to those watercourses and the bushfire requirements to ensure the maintenance of appropriate asset protection zones limit the ability to restore the creek systems to its natural state. Given the location of the site, restoration of the riparian corridor to the widths required by the Department should be possible. The development as designed cannot comply with those standards, which are considered reasonable for a site in this location. Any development on the site should optimise the opportunities to provide and enhance natural features and waterways rather than seek to minimise the width of important ecological corridors.

75For these reasons, I consider that the proposal would not be consistent with the DFC for the area. Whilst this alone is not a determinative factor in the assessment of the application as it would be for an application being assessed under Part 4, it is a matter to which the Court should give considerable weight.

76The constraints of the site require concentration of the built form on the valley floor and accordingly, all access to the site is from the lower part of Oxford Falls Road away from the urban area. That road rises steeply to the south to access the adjoining residential area, bus stops, shops and services and is not an accessible path of travel. There is no made footpath and extensive works would be required to provide such a pathway in a safe manner. The grades of the road would prevent the construction of any accessible path to access the urban area to the south of the site. The grade of the road levels out when heading to the north however, apart from the church and school there are no other services available in that direction.

77The experts agree that the site is not accessible as required under SEPP Seniors and for that reason, the application relies on the provision of bus services to access any services required off-site. I do not accept Dr Stubbs' position that the failure to provide access to the adjoining urban area will lead to social isolation of residents of the development because they cannot walk around the neighbourhood however I do accept that it is desirable for that option to be available. Mr Porter considered this to be a neutral factor however I consider it to be important in the context of the scale of the proposal, particularly the lack of choice available to residents who do not have access to a vehicle.

78The scale of the development, described as Ms McCabe as a small village, is such that it has to be inward focussed and whilst Mr Porter considers those services to be provided within the development to be a superior offering, there will be no choice of providers to any resident that does not have access to a car. The reliance on a bus service, whilst acceptable under the provisions of SEPP Seniors in certain circumstances, is not considered to resolve the sustainability concerns of creating a village that turns its back on the adjoining urban area. Nor does it allow for integration with that community or provide walkable access off site. It does not make use of existing infrastructure but rather requires the provision of extensive new facilities that would not benefit the broader community. This is considered to be a negative aspect of the proposal.

79As stated above, the Oxford Falls Valley locality will be the subject of further planning studies to determine the most appropriate future use of the land including the site. It is not unreasonable to expect that any future residential land release within the locality will accord to the planning principles contained within Metro2036. The development as proposed is not considered to be consistent with those actions due to the isolation of the site, the lack of integration, active transport and universal accessibility.

80Overall, having considered all of the evidence provided and the mandatory matters under the EPAAct and LECAct, I find that the scale and intensity of the proposal, its concentrated form and height in an area without any direct access to the adjoining urban area is inappropriate in the circumstances of the case. It is too dense and too high in a location that is essentially non-urban and provides no public benefit. Therefore, I find that the site is not suited to its intended use as seniors housing in the manner proposed and that use is not in keeping with the character of that local area. I concur with the majority of issues raised in the Director-General's report to the Minister (a report to which I must have regard) apart from those no longer relevant due to the applicant having addressed those concerns as detailed above. Accordingly, I find that the concept plan application should not be approved.

Orders

(1)The appeal is dismissed.

(2)The application for concept approval of a seniors living development is refused.

(3)The exhibits, other than exhibits B and O are returned.

______________________

Sue Morris

Commissioner of the Court

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Decision last updated: 12 January 2012