B'nai B'rith Retirement Villages Limited v Waverley Council

[2015] NSWLEC 1575

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	B'nai B'rith Retirement Villages Limited v Waverley Council [2015] NSWLEC 1575
Hearing dates:	14 November 2016
Date of orders:	15 November 2016
Decision date:	15 November 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See paragraph [33]
Catchwords:	APPEAL - development application for alterations and additions to an existing retirement village – whether the development is of an appropriate scale and character – parking and traffic concerns
Legislation Cited:	Land and Environmental Court Act 1979 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 65 – Design Quality For Residential Flat Development Waverley Local Environmental Plan 2012 Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	B'nai B'rith Retirement Villages Limited (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Mr A Pickles SC (Applicant) Mr S Patterson (solicitor)(Respondent ) Solicitors: Hones Lawyers (Applicant) Wilshire Webb Staunton Beattie Solicitors (Respondent)
File Number(s):	2016/152834

ex tempore Judgement

1. The Applicant is the owner of a retirement village at 7-11 Princess Street, Rose Bay. It appeals pursuant s97 (1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) following the Council’s refusal of its development application (DA 267/2015) and seeks consent to carry out alterations and additions to that development in accordance with an amended proposal.

2. The amended application was developed during the s34 conciliation conference which I facilitated between the parties, and ultimately at their request terminated in order to list this appeal for hearing.

3. The amended application includes:

1. the demolition of an existing two storey dwelling house and associated structures at 13 Princess Street;

2. the consolidation of the land at 13 Princess Street with the land at 7 to 11 Princess Street to create a single allotment ( the Site ); and

3. the construction of six independent living units within a new part one /part two storey building designed in accordance with the architectural drawings prepared by the Laurie Liskowski Architect (Exhibit A).The amended plans change the original application by:

• a reduction in the independent living units from 13 to 7 units ;

• removal of the third storey of the development and the rooftop terrace which substantially breached the 8m height control under State Environmental Planning Policy (Housing for Seniors or people with A Disability) 2004 (SEPP SL) and unreasonably impacted upon the district and water views available from adjoining properties to the east;

• the introduction of a roof garden between building 1 B and building 2 over the existing car parking area; thereby softening the design when viewed from the higher properties to the east and reducing the bulk and scale of the development;

• an increased side boundary setback on the eastern elevation from 1.2m to 3m and a consequent improvement in the separation between the development and the adjoining residential properties particularly, the private open spaces of the ground floor residential apartments in Gilbert Street and, the rear yard of the adjoining dwelling at 15 Princess Street;

• new finishes/cladding to the façade of the development to add architectural interest and to soften the length of built form;

• a variety of window treatments to improve solar access to the units of the development ;

• articulation of the building form to break up its vertical length, particularly when viewed from the east;

• the removal of the originally proposed car parking spaces at the street frontage which had taken away existing street parking spaces.

4. Following assessment the Council is now satisfied that a conditional approval of the development should be granted. The Council joins with the Applicant in requesting the Court to make consent orders granting the development consent, subject to the conditions (Exhibit 2).

5. Notwithstanding the agreed position of the parties, I am required to be satisfied that it is appropriate to make the orders sought. In considering the proposed consent orders, the Court’s Practice Note – Residential Class I – Development Appeals (the Practice Note) provides I must consider any submission made by an objector to the proposed orders. In accordance with the Practice Note, by letters dated 11 October 2016 and 4 November 2016 the Council’s solicitor notified those persons who had objected to the original proposal of the proposed consent orders and the agreed conditions of consent. The letters gave notice of the date of the hearing before the Court to consider the making of the proposed consent orders and invited any interested person to be heard.

Objectors

6. Despite Council's best efforts to notify those people who had previously lodged an objection there were three persons who received late notice. They include Mark Ellison of 4/7-9 Gilbert Street who has raised similar concerns to that of his partner Nicole Charif who was notified and was represented at both the s34 conference and the consent orders hearing by her mother Bernice Charif. The Court appreciates that the owners of that unit are concerned with the solar access impacts generated by the development, dust during construction and depreciation of value of their property in the event of an approval of this modified application.

7. Another objector who received late notification of the consent orders hearing was Katherine Taylor who is the owner of the adjoining two storey dwelling at 15 Princess Street, Rose Bay. Despite late notification, Ms Taylor, who purchased the adjoining property some six weeks before the hearing, invited the Court to explain the amended plans to her and observe her concerns from her backyard. This happened. Together with the representatives of each of the parties, the impact of the amendments in the most recent amended plans was explained in some detail to Ms Taylor, including the view impact when standing on her rear terrace. Relevantly, the Council’s town planner explained that the amended design improved the view impact as the proposed development has been reduced in height at the rear and that element of the building was generally hidden behind the existing hedge on her property. Furthermore, the development is set back 3 m from her boundary and the Applicant has agreed to address any privacy impacts resulting from the proposed windows along the eastern façade of the development. The consent is subject to conditions which require either louvers or some other treatment to avoid any overlooking into the Taylors; rear yard.

8. The Council has also advised that an objection was received by the owner of 18 Robert Street. That objector is concerned about loss of solar access to his rear yard as a consequence of the new development. The Council’s planner explained to the Court that this objector’s residence sits behind the existing retirement village and is unaffected by the proposal.

9. It is also the case that the Council did not formally notify in writing the Residents Committee of the B ‘nai B’rith Retirement Village about the consent orders hearing. Despite that, at the commencement of the consent orders hearing Mr L Mahemoff - the current chairman of that group addressed the Court about the amended proposal on behalf of the residents. His written submission was subsequently tendered to the Court. It was clear from the content of his address that the Committee clearly understood the draft conditions and the amended proposal. Much of his address focused upon proposed modifications to the draft conditions - particularly in relation to dust and the coordination of access through the eastern driveway to the existing car spaces during the construction. The conditions have been amended to accommodate certain of the modifications sought and now require - a dust management plan and a construction management plan for vehicles and pedestrians during the construction phase.

10. A large contingent of residents attended the view at the commencement of the consent orders hearing and several of them addressed the Court.

11. Those making submissions raised the following concerns:

1. unacceptable amenity impacts generated by the bulk and scale of the modified design

2. excessive height of the building and the incompatibility of this commercial use with the residential character of the locality

3. unacceptable impacts on views and privacy for adjoining residences within the existing residential complex and the street more generally

4. loss of existing solar access – particularly for the residents of the ground floor units in Gilbert Street

5. Inadequate building separation between the new building and the existing buildings within the retirement complex

6. unacceptable car parking – increased traffic congestion in the street and on-site

7. inadequate emergency access– particularly during construction

Planning Evidence

12. To assist the Court understand how the contentions raised by the resident objectors and the design panel are addressed by the amended application at the resumed hearing in Court, evidence was received from the parties’ town planning experts ; Manager of Development Assessment, Mr Kosnetter and the Applicant’s design consultant, Mr Neustein. Relevantly, the experts agree that the amended proposal is acceptable and in fact a marked improvement to the original application which was heavily criticised by the Council’s assessing officers, the SEPP 65 Design Review Panel and ultimately refused by the Waverley Development Assessment Panel on 25 November 2015.

13. Before I heard from the planners, the parities’ advocates explained the relevant planning controls and provided the Court with the written objections in respect of the original application and the amended proposal. The Court also received a short statement prepared by Mr Neuisten dated November 2016 commenting on how the contentions raised in respect of the original application had been addressed by the amended plans.

14. The application before the Court is for social housing. In short, it is for an additional 6 units within an existing over 55’s subsidised living retirement village.

15. The Council’s statement of facts and contentions records the site is presently occupied by a retirement village which includes five blocks of 2 to 3 storey buildings containing 57 units, communal areas and parking.

16. The development Site at 13 Princess Street is presently occupied by a detached two storey dwelling house which will be demolished and replaced with the six residential units.

17. The Site has a natural ground fall from the street to the rear of about 7 m and from east to west the fall is approximately 4 m.

18. The surrounding development in Princess Street is predominantly residential in character and contains one and two storey dwelling houses. However, seniors living development is a permissible use on the Site which is zoned R2 Low Density Residential under the Waverley Local Environmental Plan 2012 (LEP 2012).

19. That said, the principal planning control for this social housing development is SEPP SL - although State Environmental Planning Policy No 65 – Design Quality for Residential Flat Development and the Waverley Development Control Plan 2012 are also relevant considerations.

20. The full set of statutory controls are set out in the Council’s statement of facts contentions as is the history of the Council's response to the original application and the grounds of refusal determined by the Waverley Development Assessment Panel at its meeting on 25 November 2015.

Contentions

21. As already indicated, the planners believe that the amended application is acceptable after a merits assessment under s79C (1) of the EP&A Act. The height is compliant generally but for a minor breach of 900mm over the existing car parking area. The planners describe this breach of the height control in cl 40 (4) (a) of the SEPP SL as inconsequential and believe it will not be able to be appreciated from the elevated street frontage or generate an unacceptable impact from the adjoining development as it is internal to the Site. They support the cl 4.6 objection lodged in respect of this noncompliance for those reasons. In their assessment there are sufficient environmental planning grounds to justify contravening the development standard. In short, the development meets the following specific objectives of the R2 Low Density Residential zoning:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provides facilities and services to meet the day to day needs of residents.

22. And, satisfies the community need for social housing. Accordingly, the planners submit that the development is in the public interest. I accept their evidence and it satisfies me that the cl 4.6 objection is well founded.

23. The building offers a floor space ratio of 0.74: 1 and the existing FSR of the retirement complex of 3,300sqm equates to 0 .69 to 1. The SEPP SL permits the density and scale of the development - despite the LEP 2012 FSR standard for the site.

24. The planners are satisfied that the amended proposal satisfactorily addresses the design quality principles in SEPP 65 and the Seniors Living Policy and, the relevant provisions in the LEP and the DCP.

25. The planners are of the opinion that the amended proposal is compatible with the existing site character and the residential character in Princess Street - noting that directly opposite the site the land is zoned R3 and residential flat buildings are a permissible use.

26. The planners agree that the modified design appears as a two storey dwelling within the streetscape. The increased side setback improves the building separation and as a result the building mass is compatible with the rest of the retirement village and the adjoining residential houses.

27. The reduction of the building’s height means that the impact on views is no greater than that caused by the existing buildings on the site. At the hearing the Court was informed that the owners of 17 and 18 Princess Street have withdrawn their objections but for the clerestory form on Building B, I am told that in all other respects they are happy with the outcome of the modified design. However, the planners do not believe that this form of roof on building B adds unnecessary bulk and weighed against the increased amenity for the occupants of the unit believe it should be retained. I accept their expert assessment.

28. It is a fact that the amended application no longer impacts on iconic views now that the third level of the development and its balconies have been removed. The complaints about loss of solar access and overshadowing particularly of the ground floor units at Gilbert Street have, to some extent, been alleviated by the increased 3 m setback on the eastern boundary. The planners suggest that further pruning of the existing vegetation within the open space proximate to those ground floor units would increase the solar access to their properties. It is not considered that the development exacerbates this issue.

29. The existing parking on the site is to be retained as are the existing service vehicle spaces. No on street parking is to be removed by the amended application. The car parking spaces presently on the site were approved by the Council some time ago and, not surprisingly, they do not comply with current Australian Standard design standards. However, as this DA does not propose any change to the onsite parking arrangements within the development those spaces will remain as they have been to date.

30. Importantly, the widening of the driveway on the eastern side of the site will provide safer access to the existing parking spaces particularly when a pedestrian is walking along that driveway at the same time as a vehicle is attempting to gain access to or from the site.

31. In the ultimate, the Council's planner said that the social housing provided by this development is a positive public interest outcome. Many of the residents are unhappy about the fact that the proposal does not provide for additional onsite parking. They believe that the new residents and their visitors will use the street which is already congested. As Mr Kosnetter explained to the Court there is no requirement under cl 50 (4) (h) of the SEPP SL for the Applicant to provide for additional parking in this development therefore, that matter cannot be the basis for a refusal of development consent. The number of existing spaces provided on the site is compliant. In his assessment, the concerns raised by the objectors have been satisfactorily addressed by the amended plans and, subject to the imposition of the proposed draft conditions including; the requirement for privacy screens on the bedrooms of units 5 and 6 and the common stairway on the eastern elevation, the imposition of a dust condition and a traffic and pedestrian plan of management during construction, the development it is acceptable and should be approved.

Conclusion

32. After careful consideration of the expert planners’ evidence, the relevant planning controls, the written and oral objections received by the Court I am satisfied that the amended application is a vast improvement on the original design. After assessment under s79C, I find that the amended proposal is acceptable development for the Site. Accordingly, I believe that it is appropriate to grant development consent to the amended application in accordance with the parties’ proposed consent orders dated 14 November 2016.

33. Therefore, the Court orders are

1. The appeal is upheld;

2. Development consent is granted to development application DA 267/2015 for alterations and additions to an existing retirement village located at 7 to 13 Princess Street, Rose Bay NSW 2029 in accordance with the plans in Exhibit A and subject to the conditions in Annexure A.

3. The exhibits are returned.

………………………………

Commissioner Dixon

152834.16 Dixon (C) Revised (282 KB, pdf)

Amendments

05 December 2016 - Pursuant to UCPR 36.17, the slip rule, amend orders of 15 November 2016 [so that Condition 2 (a) and (b) now] reads as follows:

2.

(a) Seniors or people with a disability [as defined in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("SEPP")];

(b) people who live within the same household with seniors or people with a disability ; or

Decision last updated: 05 December 2016