Alnimat Pty Ltd v Sutherland Shire Council

[2010] NSWLEC 1038

Land and Environment Court

of New South Wales

CITATION:

Alnimat Pty Ltd v Sutherland Shire Council [2010] NSWLEC 1038

PARTIES:

APPLICANT
Alnimat Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10485 of 2009

CORAM:

Moore SC - Fakes C

KEY ISSUES:

DEVELOPMENT APPLICATION :- SEPP Seniors Living
SEPP 1

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
State Enviornmental Planning Policy 1 Development Standards
Sutherland Shire Local Environmental Plan 2009

CASES CITED:

Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Mison v Randwick City Council [1991] 23 NSWLR 734
Manzie v Willoughby City Council [1996] NSWLEC 26

DATES OF HEARING:

2 November 2009, 3 November 2009,
4 November 2009, 11 November 2009

 
DATE OF JUDGMENT: 

26 February 2010

LEGAL REPRESENTATIVES:

APPLICANT
John Robson SC
SOLICITOR
Robert Napoli & Co

RESPONDENT
Gary Green (solicitor)
SOLICITOR
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

26 February 2010

09/10485 Alnimat Pty Limited v Sutherland Shire Council

JUDGMENT

Introduction

1 COMMISSIONERS: For reasons that will become obvious in the context of what follows, it is appropriate to commence this decision with a brief outline of the process that the Court now undertakes when dealing with development application appeals. For a number of years, commencing under McClellan CJ, and continuing (with greater emphasis) under Preston CJ, the Court has considered development application appeals not merely on the basis of asking the question whether or not to the proposal can be approved but also posing the question (if it is not capable of approval but is generally worthy of approval), can it be approved by requiring such modifications as are necessary – doing so properly within the reasonable scope of the application. This approach has been described, on a number of occasions, as being the “amber light” approach.

2 In addition to considering the changes that might be made to render an application approvable, it is critically necessary to ensure that the resultant approved proposal is not so significantly changed from that which was initially before the Court for approval that it, in effect, became a different proposition requiring a fresh development application.

3 In this process, consideration of the possible changes is to be undertaken, in our view, on what is effectively the same basis as the scope available to the Court to grant leave to amend the proposal when such amendments are advanced by an applicant in proceedings where an application to amend is contested by the council.

4 Further, it is necessary to ensure that there be no delegation of critical elements in such an amendment to some external body (see Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181) nor any ambiguity of significance left in the scope of the alterations to the plans (see Mison v Randwick City Council (1991) 23 NSWLR 734).

5 In this instance, we are dealing with an application for a socially desirable aged-care facility. Those of the nature described below, as proposed in these proceedings, have the benefit of a facultative State environmental planning policy, State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors Living). This proposal also has an element of local social desirability as was described in the evidence of the residents of another aged persons facility, Waterbrook, located on Wyralla Road, opposite one of the frontages of this proposal. Those residents hoped, in the orderly transition of aged living, as they expressed it, to be able to move, if needed, from their present independent living facility to this proposed facility with its more intensive available care levels.

6 It is within the broad process for consideration of this proposal, both generally and specifically, that we have proceeded to address the extensive range of issues that were raised by the council as warranting, either individually or cumulatively, refusal of the proposal.

7 As we have done so, it has become clear to us during the period since this decision was reserved that the issues have divided into two strands. The first of these comprises those issues that are definitely capable of resolution within the framework earlier described – where we felt we were likely to be able to determine, properly, on the basis of the plans and other evidence before us, what would be the necessary amendments required to render those aspects of the proposal acceptable. They will be outlined – but briefly only – in what follows (for the reasons explained in that context).

8 The second strand, however, was one in which we were exercising our minds in considering several interlinked issues. Here, for reasons discussed below, whilst the difficulties that arise may possibly be capable of resolution, such a resolution would require, potentially, a major redesign of a significant element of the proposal – and necessarily do so in a fashion which we are unable to specify on the basis of the evidence presently before us.

9 The cumulative effect of the changes we are satisfied would be necessary and could be specified by us – coupled with the potentially significant extent of the changes that might be necessary in the area where we are able to discern the impacts but not specify precisely the changes necessary to address them (merely the nature of the unacceptability) – means that the proposal must be refused.

The proposal

10 The proposal seeks approval for a 96 place residential aged care facility on a site which stretches between Wyralla and Warrah Roads in Yowie Bay (in total referred to as the site). The site comprises seven existing allotments – four of which have their frontages to Wyralla Road (which street is to be the primary frontage of the development); two that have direct frontages to Warrah Road; and one allotment that is a battleaxe allotment having a right of carriageway driveway to Warrah Road but possesses no street frontage. There is a bend in the site at about the mid-point of the boundaries along the allotments between each street frontage.

11 The proposal has two levels of accommodation continuously throughout the site but, in the elbow of the site on the side (facing properties that have frontages to Wonga Road), the proposal includes only a single storey component.

12 There is a significant band of the vegetation that runs down the rear areas of the various residential allotments including the allotments that are proposed to be consolidated for this development.

13 As earlier noted, opposite the Wyralla Road frontage of the proposal is located Waterbrook, a residential facility for older citizens which is not a facility classified as a residential care facility as it is designed for independent living.

14 Although Wyralla and Warrah Roads do not run in a precisely east-west direction, it is convenient to treat them, for the purposes of referencing orientation in this decision, as if they did so. We have, therefore, adopted these notional orientations for the purposes of this decision.

The planning context

15 The application was made to Sutherland Shire Council (the council) pursuant to SEPP Seniors Living. This planning policy is a facultative one and, to the extent that there may be any inconsistency between SEPP Seniors Living and any of the planning controls contained in the council's Sutherland Shire Local Environmental Plan 2009 (the 2009 LEP) and any of the council's development control plans, SEPP Seniors Living prevails to the extent of any such inconsistency.

16 Residential care facilities are a particular class of development dealt with by SEPP Seniors Living and are defined, in cl 11of the SEPP.

17 Clause 29(2) of SEPP Seniors Living imports a requirement, for development not otherwise brought within the scope of cl 25 of the SEPP (by being development to which cl 24 does not apply – as is the case with the present proposal) by requiring three of the criteria in cl 25(5)(b) to be taken into consideration by the consent authority. Clause 29(2) provides:

(2) A consent authority, in determining a development application to which this clause applies, must take into consideration the criteria referred to in clause 25 (5) (b) (i), (iii) and (v).

18 The provisions of cl 25(5)(b) deal with the natural environment; services and infrastructure; and the impact on bulk, scale, built form and character of the proposed development. These three provisions are in the following terms:

(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,
(ii) ……,
(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,
(iv) ……,
(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,
(vi) …….

19 In addition, in cl 33 Neighbourhood amenity and streetscape, SEPP Seniors Living requires, in its design principles, that:

The proposed development should:

(a) 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, and
(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and
(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and
(ii) using building form and siting that relates to the site’s land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and
(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
(f) retain, wherever reasonable, major existing trees, and
(g) be designed so that no building is constructed in a riparian zone.

The site inspection

20 We inspected the site with the legal representatives of the parties and those advising and instructing them. We inspected both road frontages of the proposal and entered onto a number of either neighbouring properties or properties in the vicinity to understand propositions being put to us by those who wished to be heard either in opposition or in support of the proposal. Notes were taken of this informal evidence given during the course the site inspection and those notes subsequently formed part of the formal evidentiary record of the proceedings.

21 the council is amended statement of facts and contentions raised a number of issues, both internal and external, concerning the proposal. Given the conclusion which we have reached as earlier outlined, it is not necessary to set out, exhaustively, the full range of issues, in our view, as pleaded by the council. It is, appropriate, however, to note that they included:

• internal amenity and functional design of the proposal;
• inconsistency with the character of the area;
• non-compliance with development standards contained in SEPP seniors living and the lack of justification by objection pursuant to SEPP 1 for such non-compliance
• unacceptable impacts on neighbouring properties of a variety of kinds;
• unacceptable removal of trees;
• inadequate information concerning details of the proposal; and
• impacts from (and the adequacy of) proposed vehicle access at both ends of the proposal.

22 In addition, a further matter related to the proposed use of an existing right of way serving one of the allotments at the Warrah Road end of the proposed development as an emergency fire egress from the development.

Compliance with development standards in SEPP Seniors Living

23 There are two development standards contained in SEPP Seniors Living that the council says are breached by this proposal. They relate to the maximum height for the proposed development contained in Part 4, Division 1, cl 40 of SEPP Seniors Living.

24 The first of these, contained in cl 40(4)(b), provides as follows:

A building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must not be more than 2 storeys in height,

25 There is no doubt that this development standard is breached by the proposal. Mr Fletcher, expert planner for the applicant, prepared an objection pursuant to the State Environmental Planning Policy 1 Development Standards (SEPP 1), to complying with this development standard. Ms Pinfold, the council's town planner, did not consider that this SEPP 1 objection should be sustained for the reasons discussed in her statement of evidence.

26 The second development standard that the council says is breached by the proposal is that it contained in cl 40(4)(c), which provides that:

A building located in the rear 25% area of the site must not exceed 1 storey in height.

27 Whilst the applicant did not accept that this development standard was breached because of the site has two frontages (to Warrah and Wyralla Roads as earlier described) and thus has no rear area, Mr Fletcher nonetheless prepared an objection pursuant to SEPP 1 to compliance with this development standard. This was prepared on a contingent basis (if we were to conclude that, contrary to the submissions made by Mr Robson SC for the applicant, that the standard, in fact, applied). If it applied, it was also clearly breached on the agreed position of the planners who had marked up a site plan with what might, if the site were to be regarded as having a rear area, comprise that necessary to be considered 25% portion of it.

The Warrah Road end of the proposal

28 Whilst we are satisfied that the overall presentation to Wyralla Road and the associated driveway arrangements at this frontage are acceptable, the same cannot be said with respect to the presentation of the proposed development to Warrah Road.

29 For the reasons that follow in this section of our decision, we are of the view that the Warrah Road end of the proposal, both in its streetscape context and in its acoustic impacts (on the neighbouring property to the south and the potentially on the residents of the proposal itself) necessitates a conclusion that this part of the proposal is unacceptable for the reasons that we describe below. That unacceptability might be able to be cured by a major redesign of this element of the proposal that addressed to the streetscape issues and was accompanied by appropriate acoustic evidence that indicated that the redesign had addressed and removed unacceptable acoustic impacts, whether certain or conjectured, arising from the proposal.

30 In understanding these concerns, it would appear to us that there are three elements of the design philosophy and site constraints that have led to this situation arising. They are:

• The constrained nature of the frontage to Warrah Road (as there are only two allotments with a direct street frontage at this end of the proposal as compared to four allotments with a direct street frontage at the Wyrilla Road end of the proposal;
• The incorporation in the design of the major loading dock facilities for the proposal into a basement at this end of the proposal (thus necessitating delivery vehicles entering the site; turning in the front setback; and reversing down an excavated driveway with masonry walls on each side); and
• The determination to carry through both the floor plates of the building to a uniform setback from the Warrah Road frontage at a point closer to the street than exists in the immediate vicinity.

31 To enable a proper understanding of the matters that are discussed further concerning these three matters, it is appropriate to reproduce the three images below. They are, in order:

• An extracted element of the ground floor plan for the relevant portion of the Warrah Road end of the proposal;
• An extracted element of the elevations contained in the plans to reproduce the facade presentation to Warrah Road at that end of the proposal; and
• A copy of the applicant’s by photomontage of this end of the proposal in the existing streetscape.

32 It is to be cautioned that, because the first two images have been extracted, they are not to scale and should not be measured from although, obviously, they remain true to proportion. Similarly, the photomontage has been reduced to enable its reproduction in this decision and a similar caveat as to scale and proportion applies to the third image.

33 We turn, first, to the question of the streetscape presentation of this element of the proposal. As earlier noted concerning the applicability of various provisions of SEPP Seniors Living, we are obliged to consider, pursuant to cl 25(5)(b) of SEPP Seniors Living, whether or not we are of the opinion that the proposed development and is compatible with the surrounding land uses by having regard, inter alia, to the following criteria:

The impact of 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.

34 Similar considerations arise from the provisions of those portions of cl 33(c) emphasised below:

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and
(ii) using building form and siting that relates to the site’s land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development , and
(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours

35 With regard to these matters for consideration, the existing uses both now and likely in the future are of a residential character and scale. Those in the immediate vicinity, to the left and right as one faces the proposal in Warrah Road, can be seen from the photomontage. Although there are duplex development elements in the vicinity that are two-storey and have a degree of hardstand in their front setbacks, there are none that present, in any fashion, significantly similar to that which is here proposed. It is not suggested, as we understood the planning evidence, that further developments of this nature would reasonably be expected in the vicinity (although some increase in housing densities were likely consistent with the relevant provisions in the LEP).

36 The site is located in the LEP’s Zone 4 – Local housing. The zone objectives for the zone are in the following terms:

(a) to allow low density residential buildings that complement the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,

(b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,
(c) to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone,
(d) to allow residential buildings that provide a variety of housing choices for the needs of the local community,
(e) to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential amenity of the zone.

and shape the permitted range of development with consent for the Zone and this locality – noting, always, that developments such as that in this proposal may also be advanced using the facultative provisions of SEPP Seniors Living.

37 The permitted range of development with consent for the Zone is set out below.

boarding houses, childcare centres, community facilities, dual occupancies, dwelling houses, educational establishments, high technology medical industries (but only on land identified on the map for such a purpose), medical facilities (but only on land identified on the map for such a purpose), places of public worship, recreation areas, residential medical practices, roads, seniors housing, tennis courts (private), townhouses (except on internal lots), utility installations (except gas holders or generating works), villa houses (except on internal lots).

38 A joint conference was held in late October 2009 between the applicant’s and the council’s planning and architectural experts – Mr Fletcher and Mr Ollerton for the applicant and Ms Pinfold and Mr Brooker for the council. In their joint report, they are referred to by their initials – these being LF, GO, DP and PB respectively.

39 With respect to the matters that are of concern to us, there were three areas of agreement recorded in their joint report that we should note. These were that:

SEPP Seniors Living allows buildings with different physical characteristics to the types of developments which are otherwise permissible in the zone ;

The design principles in clause 33 of the SEPP seek to recognise and retain the desirable elements of the location's character ; and

In relation to identifying the desirable elements of the location's character, the experts agree that there is no consistent architectural style, there is a variety of materials evident in the buildings and there was a variety of roof forms.

40 The experts then proceeded to set out their views on the area of disagreement as to whether the proposed development has given adequate regard to the retention of the desirable elements of the location's character.

41 We make two comments before setting out, verbatim, the contesting evidentiary positions adopted with respect to this area of disagreement. The first is that, although cast in a different form, this area of the joint expert report deals with and responds to the matters of concern we have identified as relating to the Warrah Road end of the proposal and arising from cll 25 and 33 of SEPP Seniors Living. In addition, although further extensive oral evidence was given by these witnesses, it is our understanding of this evidence that it did not encompass any resiling from the conclusions expressed in the written joint report (to the extent that that oral evidence related to the Warrah Road end of the proposed development).

42 Although the material reproduced below from the joint statement encompasses not only the aspects about which we have reached an adverse conclusion (being confined solely to the Warrah Road end of the proposal), the positions taken by the experts also covered, as set out below, a range of other matters connected to this topic. However, for ease of understanding their positions, although it involves the incorporation of what might otherwise be regarded as extraneous material, we have reproduced the totality of what was written by each of the four of them (as we have concluded that to endeavour to edit the content of the joint report so as only to provide material relevant to this issue of concern would have created difficulties in understanding the nature of the material presented to us). As a consequence, it is reproduced in full. We have, however, added emphasis by our by our bolding and underlining of those areas in each of the elements of the extract reproduced below that we think are of particular relevance to the matters of concern to us.

43 Also, in our view appropriate to enable an understanding of the positions taken, we have presented the contrasting positions of the two town planners followed by those of the two architects.

44 Mr Fletcher said:

It is my opinion that the existing character of the locality is not homogenous. Whilst detached single dwellings of one and two-storey height set on allotments of landscaped front and rear yards dominate, there are notable examples of much more intense forms of development such as Waterbrook retirement village opposite the site as well scattered medium density housing developments.

Further, the future character is likely to be even less homogenous as Council’s planning controls allow developments such as two-storey townhouses on amalgamated sites. In my view the redevelopment of particularly the larger allotments in the locality for more intense housing forms is highly likely in the future .

In relation to identifying the desirable elements of the location's character, as indicated above, the experts agree there is no consistent architectural style, there is a variety of materials evident in the buildings and there is a variety of roof forms. In my opinion it follows that the architectural style of the proposed development, as well as its external materials and roof form are not inconsistent with the character of the locality.

DP and PB argue that the spatial pattern of buildings to landscaped areas, particularly heavily treed rear yards is a key desirable element of the location’s existing and likely future character that will be lost as a consequence of the development.

Firstly, it is agreed between the experts that the objectives and provisions of Council's LEP and DCP are designed to reflect a built form outcome that reflects a continuation of the current general height, density and scale. In my opinion it is clear that this built form outcome is significantly less than the built form that will result from the “as of right” development standards contained in the SEPP. Accordingly, in my opinion these elements of the location's character must be given little weight as they are clearly inconsistent with the provisions of the SEPP which contemplates a pattern of development in terms of building height, density and scale as well as landscape provision that is far more intense. In my opinion, to do otherwise would be to negate the intent of the SEPP, the thrust of which is to encourage the provision of residential aged care facilities and to override local planning controls where they are inconsistent with that intent and the SEPP provisions.

Secondly, Council’s LEP and DCP controls do not prevent amalgamations of properties and the construction of townhouses within existing rear yards. There are no development standards in Council’s LEP or DCP to prevent the construction of a continuous two-storey building of townhouses through the current rear yards of existing allotments.

45 The comments by Mr Ollerton were in the following terms:

DP & PB contended that the proposed form and scale of the building has not given consideration of the local character requirements under the SEPP (Housing for seniors or People with a Disability) 2004 Clause 33. (a) and (c).

DP & PB categorise their view of Local character as:

a) the pattern that built form, and
b) the local landscape and character.

It was agreed that no Architectural language, aesthetic or bulk and scale (with regard to one or two storeys can be seen in the immediate locale. With regard to item b) above, I defer to landscape experts opinion as to the pattern of the local landscape character.

In response to item a.) “Patterned built form”

The development is sited within a residential area that is currently undertgoing a transition with regard to the various development types that have been constructed within the immediate locale of the proposed Residential Aged Care facility (RACF) as evidenced by the following:
• The ‘Waterbrook Lifestyle Resort’ immediately opposite the subject site to the North East on Wyralla Rd. This development presents a long continuous built multi-storey form both to the streetscape and the adjoining neighbours varying from 2-3 storeys.
• The medium density townhouse developments of which an example exists directly opposite the subject site.
• The primary school to the south-east of the subject site which is a substantially larger scale built form both to the streetscape and also adjoining properties.
• Single dwelling houses which are comprised of a mixture of single storey and two storey dwellings with large rear yards.

SEPP Clause 33 Neighbourhood amenity and streetscape states that the 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 ”

I do not contend that the proposed building is representative of the single dwelling pattern, however significant design consideration is being given to this concerned such that the proposed building is design to be perceived primarily as a number of well articulated buildings which is sympathetic to the local pattern built form. Additionally as stated above there is contextual evidence and the building of the proposed size is in fact not offensive in the immediate locale.

The elevations to Wyralla Rd & Warrah Rd are designed to reflect and be harmonious and streetscape residential pattern by one of the following design considerations:

• The elevations are arranged with forms of hipped pitched roofs that reflect the immediate dwellings
• The Wyralla St Elevations has a single storey presentation to the street which contributes to the reducing streetscape as can be seen on the streetscape elevation.
• The Warrah St elevation presents as a two storey elevation of the street, however two storey street presentations from residential dwellings are quite common in the locale. The elevation has been given substantial consideration such that the roof form and language of No 26 Warrah road is reflected in the proposed elevation.
• The proposed building is set back to be in sympathy with the existing building line setbacks on both street frontages which has a rhythm of varying slightly forward and behind the SCDCP requirement of 7.5 m. The Warrah Rd building setback has been identified as being unreasonable by DP and PB, however I disagree as the proposed building is consistent with the existing building setback as evidenced by the detailed plan overlaying the proposed plan against the existing building outlines

SEPP CL 32 Design of residential development stipulates that “adequate regard” must be given to the design principles set out in division 2. It is my opinion that the proposed development has given adequate regard to these principles and responds well to the local patterned built form and differential developments by way of using significantly articulated building forms to present a language and rhythm of several linked buildings, was responding to the challenging site topography to achieve a functional Residential Aged Care Facility suitable for Seniors Living.

46 Commencing the contrasting evidence with the positions set out above, Ms Pinfold’s comments are set out below.

DP summarised the character of the area as:

• Retention of significant landscape areas, including extensive canopy tree cover within the rear yards of most existing allotments. The general pattern of vegetated rear yards and canopy trees have been retained upon redevelopment of sites, even where the characteristic subdivision pattern has been altered.
• Retention of canopy trees and street setbacks and road reserves of both Wyralla Road and Warrah Roads.
• Landscaped street frontages.
• A predominantly single dwelling character within the triangular area of land bordered by Warrah, Wyralla and Wonga roads, within which the site is located. Characterised by a mix of single and two storey dwellings, with detached single storey outbuildings.
• Adjoining this triangular area, single dwelling character still predominates, but also contains the Waterbrook aged care facility opposite the site in Wyralla Road and a medium density development opposite the site in Warrah Road.
• The Waterbrook development retains the vegetated ‘rear yard’ pattern of development and canopy trees of scale and look the site and on each street frontage, even though it does not utilise the characteristic subdivision pattern of the locality.
• The planning controls in Councils LEP and DCP seek the retention of this character upon any redevelopment.

The key character elements that need to be retained to preserve a reasonable level of neighbourhood amenity and appropriate residential character are :
• Retention of sufficient landscaping and band of canopy vegetation within the central part of the site to retain a vegetated ‘rear yard’ pattern.
• In addition, any built form within the 25% single storey areas needs to be of a bulk, scale and continuity which allows for the existing vegetated backdrop to remain the primary visual element.
• Retention of vegetated street setbacks and canopy trees in the streetscape, buildings addressing the street, and setback or two storey elements not forward of that of the adjoining existing single storey dwellings.

DP states that the proposed development does not achieve reasonable neighbourhood amenity and appropriate residential character as :

• The proposed building extends in continuous built form from Wyralla Road to Warrah Road, eliminating the existing pattern of vegetated rear yards and band of canopy trees across the site.
• The proposal retains only two canopy trees of scale along north western boundary of the site, according to the Arborist’s report. The remainder of the band of canopy vegetation of scale running across the amalgamated rear yards of the sites is to be removed.
• In the central most part of the site currently occupied by vegetated areas and small scale outbuildings, the proposed building has a two or three storey height, including a ground floor level which sits higher than the existing boundary fence on the shared eastern boundary with the rear of 28 Wyralla Road, 36, Warrah Road and 65-67 Wonga Road. This part of the building also contravenes the 25% single storey control established by clause 40(c) of the Seniors SEPP.
• The building design which seeks one continuous building over the length of the site and to retain uniform floor levels throughout the building, results in significant excavation along the Wyralla Road frontage and the elevation of the ground floor levels to a height of at least 1 m out of the ground along the above mentioned boundaries. As such the building form and siting does not relate to the sites landform. This is illustrated on the diagram in Annexure B.
• The proposed landscaping is not considered by Council's Landscape expert to re-create the characteristic landscape pattern of the locality or get a canopy cover across the site that is typical of that in the locality.
• The Warrah Road setback is not in sympathy with the street setback as it is set forward of the existing single storey dwellings on either side; has a subfloor height which constitutes a storey under SSLEP 2006, and as such would be characterised as a three storey building under that instrument and be out of character with the type of development that can be expected in the locality were two-storey height limit applies; and a significant portion of the front setback is occupied by the vehicle turning/ambulance bay, in contrast to the vegetative front setbacks which characterise this street.


While it is accepted that the SEPP allows buildings with different physical characteristics to the type of developments which are otherwise permissible in the zone, the bulk and scale of the building – arising from its continuous length, height in the centre of the site, elevation above existing ground level along the boundary with 36 Warrah Road, relationship to Warrah Road and inability to retain or recreate the key elements of the characteristic landscape pattern, have an unacceptable adverse impact on the character and visual amenity of the area .

As such the proposed development does not have adequate regard to the design principles established in clause 33(a), (c), (d) and (f) of the Seniors SEPP. Notwithstanding compliance with these standards, the provisions in clause 46 of the Seniors SEPP clearly state that, development consent cannot be granted if the consent authority is not satisfied that the proposed development does not demonstrate that adequate regard has been given to the design principles set out in the SEPP, including the Neighbourhood Amenity and Streetscape design principle in clause 33 .

47 Mr Booker contributed his opinions as follows:

PB disagrees that the proposed development suits the character of the area in that:

The existing streetscape(s) of the subject site comprise a variety of single detached dwellings within landscaped settings, the design is not complementary to that character due to its result-lack of soft landscape features to the Warrah Road frontage. The lack of a pedestrian entry front door to the development from Warrah Road is also not consistent with the character of development the area. Indeed, this lack of pedestrian access does not suit the connection to the building for ambulance service from the indicated ambulance by located within the front setback area of the Warrah Road frontage.

The depth of excavation and the design of the pedestrian access to the main building entry at the first floor level by a bridge connection across steep, terraced areas are not characteristic of existing or expected future development to the Wyralla Road frontage.

48 We cannot accept the position advanced by Mr Fletcher and Mr Ollerton (noting, in this context, that our disagreement is here confined to comments solely applicable to the Warrah Road end of the proposal). We prefer the opinions expressed on these matters by Ms Pinfold and Mr Booker.

49 There are significant discordant differences not merely in the nature of the built form and its proximity to Warrah Road in that which is proposed by the applicant but there is also the significantly different and, in our view, discordant and unacceptable creation of the turning space in the front setback coupled with the excavated masonry-walled drive descending into the basement loading dock.

50 There is nothing of a generally modest residential scale in the way that this proposal would necessarily read when viewed from the street. The built form, although with a degree of articulation, is nonetheless domineering given that there is no setting back of the upper level from the lower level in any of the presentation in this streetscape. The comparatively un-fenestrated presentation of the central, masonry-faced portion of most forward element reinforces, in our view, this domination in this streetscape. Further, the inability to provide any landscaping of any significance in the front setback that could shield turning movements of delivery trucks means that the nature of the use of the front setback for turning purposes will be more visually akin to the commercial nature of the facility rather than of any vehicle movement pattern likely to be consistent with the pattern of present or future development reasonably expected in the vicinity.

51 It is not appropriate for us to speculate whether or not design changes can cure these faults – however, it is safe to say that, consistent with the “amber light” approach taken by the Court, we are unable to visualise such a resolution in a fashion that we could specify and require within the scope of these proceedings.

52 A similar position applies with respect to visualising a resolution for such changes as might result for the internal design of the built form itself and the necessity to make the spaces inside, comprising two wards of the proposed facility including the dementia ward, work in an appropriate health care fashion. We simply do not have the specialist expertise that would permit us to undertake this task even if the external changes could be envisaged. Nor, indeed, would it be appropriate for us to do so.

53 This proposal is not in a position where, in the case of a residential flat building, for example, otherwise unacceptable impacts might be resolved be removing one unit from the top floor of the building or some other alteration to presentation or facade treatments.

54 Although we are satisfied that the matters described above concerning the presentation of the proposal at its Warrah Road frontage are sufficient to warrant refusal unless redesigned in a fashion (beyond the scope capable of being dealt with within the present application), we were also left with a significant feeling of disquiet about the actual and possible acoustic impacts of the driveway.

55 Mr Wasserman, acoustic expert for the applicant provided a Statement of Evidence and gave oral evidence to supplement it. His cross-examination by Mr Green, solicitor for the council, exposed a number of defects in his consideration of the possible acoustic impacts of the Warrah Road end of the proposal.

56 Mr Wasserman had not included in use noise assessment of any allowance for the reversing alarms of trucks backing down the drive to the loading dock. Further, he had not made any assessment of the possible impact of the use of the driveway on residents of the proposed facility. Finally, he had not undertaken his measurements at appropriate receptor locations rather ahead confined himself to taking measurements on the boundaries of the site.

57 When pressed by Mr Green on the issue of the impact on the patio area of the adjacent property to the south, he indicated that he did not consider that the appropriate background noise level assumptions he made about traffic patterns in Warrah Road required revision because of the shielding effect of the dwelling itself – proposition we do not accept absent any measurements in support of the proposition. He, reluctantly to our impression, conceded that there was the potential impact from the reversing alarm but considered that this could adequately be dealt with by increasing the height of the acoustic barrier between the site and the residents to the south – but to an extent which he was not able to specify precisely. He also suggested that acoustic treatments could be used to ameliorate any noise impact that might be occasioned to residents of the complex itself but could not specify where and how such treatment might be effected.

58 Overall, it is fair to say, we found his evidence to be unsatisfactory. We are of the view that these were additional impacts to which he was not able to respond because he had not undertaken appropriate testing or modelling – thus giving us little confidence in his conclusions about them and, we consider, no proper basis upon which we could accept his evidence.

59 We are therefore left in a position where we

Discussion of the resolvable issues

60 Of all the issues outlined earlier, we had formed the tentative review that it was likely that they were able to be resolved in a satisfactory fashion by a series of amendments that we could require, within the scope of the present application, and do so in a fashion that did not go beyond the bounds of that which was capable of being dealt with in these proceedings. In coming to that negative conclusion, we are also had regard to the fact that, if we were to do so, we would need to deal with two objections made pursuant to State environmental planning policy number 1 to compliance with development standards contained in the SEPP Seniors Living by either sustaining one of the objections and determining that the other development standards did not apply to buy sustaining both objections to compliance.

61 We had tentatively concluded that, if the proposal were to be mollified in the various aspects we were contemplating, we did not see that those development standards were insurmountable impediments to the application.

62 However, the particular modifications to the application that we were contemplating, particularly those responsive to matters raised by the council involving (or arguably involving) non-compliance with development standards would have been subject to requirement of some significant changes to the proposal. These changes, in totality, would have required us to consider whether or not to those changes would be so substantial, in themselves, in total, so as to render the proposal as we would have required it to be amended sufficiently different from that which can was the subject of the existing application that a fresh development application would have been required. We do note that we anticipated that, had we finalised those matters in the fashion we were contemplating, that boundary would not have been crossed (had we considered it appropriate to continue down that path).

63 Although we considered it a appropriate to give this indication that we considered, on a tentative basis, that this suite of issues was capable of being resolved, given that it is possible that the applicant may seek to respond to this decision by addressing the issues upon which it has failed by a redesigned Warrah Road end of the proposal in conjunction with consideration of an adequate acoustic assessment, it is not appropriate for us to make to comment in detail about the other issues that were in contention as to do so would be to offer gratuitous advice to those who might be required to determine some future development application (be that at a council or a Court level) particularly as we had not reached a final and confirmed conclusion on those matters.

64 Given the position at which we have arrived concerning the design deficiencies at the Warrah Road end, giving of gratuitous advice to such future decision-makers would fly in the face of the comments made, appropriately in our view, by Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 26.

Conclusion

65 We have concluded for the reasons set out above, that the combination of the changes which are necessary to address and resolve a number of the issues raised by the council (where we can define those changes) when coupled with the extent of changes that are necessary to address and resolve the flaws in the proposal at its Warrah Road frontage means that it is certain, in our view, that any resultant amended proposal would be so different from that which was proposed at the commencement of the proceedings that it could not be dealt with within the same development application’s scope. This position is reached, for this latter aspect of the proposal, by a combination of the overreaching of the applicant’s design for this frontage of the proposal coupled with the defects, as a revealed by Mr Green's cross-examination, of the leading to resultant uncertainties about the scope (but not the existence) of unsatisfactory impacts of an acoustic nature. As a consequence, we have, reluctantly, concluded that the appeal cannot be upheld despite the social worthiness of the project.

66 As a consequence, the orders of the Court are:

1. The appeal is dismissed;
2. Development Application DA08/1341 for the demolition of seven dwellings and the erection of a residential aged care facility at a site located between Warrah and Wyralla Roads, Yowie Bay, is determined by the refusal of development consent; and
3. The exhibits are returned.
Tim Moore Judy Fakes
Senior Commissioner Commissioner of the Court