E G Property Group Pty Ltd v Rockdale City Council

[2015] NSWLEC 1265

Land and Environment Court

New South Wales

Medium Neutral Citation:	E G Property Group Pty Ltd v Rockdale City Council [2015] NSWLEC 1265
Hearing dates:	21 & 22 May, 18 June & 15 July 2015
Date of orders:	20 July 2015
Decision date:	20 July 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See [59]
Catchwords:	DEVELOPMENT APPLICATION – nursing home – State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – development standards – objections to compliance sustained CONSENT ORDERS – amended proposal – resident objections to revised proposal – no basis to refuse or require further changes – consent orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 Rockdale Development Control Plan 2011 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Category:	Principal judgment
Parties:	E G Property Group Pty Ltd (Applicant) Rockdale City Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) J Cole, solicitor) (Respondent) Solicitors: Minter Ellison (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	15/10135
Publication restriction:	No

Judgment

1. HIS HONOUR: The Endeavour Nursing Home stands on the north-eastern corner of the T intersection of Wilson Street and Rocky Point Road at Ramsgate. The present nursing home occupies what was, originally, three residential allotments, two with frontages to Rocky Point Road and one with a frontage to Wilson Street. The present entrance to the nursing home is from Wilson Street at approximately the mid-point of the building and the service access and some aboveground parking is a concrete surfaced area at the eastern end of the site.

2. The site slopes from south to north with there being a gentle slope along the Rocky Point Road frontage whilst, as a consequence of a cross-slope from the south-western corner to the north-eastern corner, the slope at the eastern end of the site from the Wilson Street frontage to its northern boundary is more pronounced.

3. The present nursing home has 28 beds and can be characterised, in very broad terms to be of two storeys along its Rocky Point Road and Wilson Street frontages – with there being two storeys and a basement level facing the properties on the present site’s northern boundary.

The proposed development

4. It is now proposed to demolish the existing nursing home and redevelop it - with the redevelopment of the present site with it extended across the three neighbouring residential properties to the east fronting Wilson Street. The proposed new development (as applied for) would accommodate 81 aged care beds and would also have its service access way along the eastern boundary of the aggregated development site (the development site).

5. A development application (Development Application 2014/372) was made to Rockdale Council (the Council) on 29 May 2014 seeking development consent for the proposed demolition of the existing nursing home and the residences on each of the existing allotments fronting Wilson Street that form part of the development site. The application also sought approval for the construction of the new proposed nursing home.

6. On 14 November 2014, the Council determined the application by refusing it and the applicant commenced these Class I proceedings appealing against that refusal.

The appropriate planning framework

7. The development site is located entirely in an area zoned R2 Low Density Residential under the Rockdale Local Environmental Plan 2011 (the LEP). A development of this nature is a permissible use within this zone (pursuant to the land use table in the LEP). Although the development application to the Council did not specify whether the application was made pursuant to the LEP or pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP), these proceedings were initially conducted on the basis that the relevant planning regime is that which arises under the SEPP. As I have had occasion in the past to observe, the SEPP is a beneficial and facultative planning instrument. This SEPP (and its predecessor to similar but not identical effect) have been endorsed by successive State governments as appropriate to achieve desirable social accommodation outcomes.

8. To the extent that there is any inconsistency between the SEPP and the LEP or any other local planning document (whether a development control plan or Council policy), the provisions of cl 5 of the SEPP cause the SEPP to displace the provisions of the local regime.

9. In these proceedings, although there was considerable discussion by Mr van de Walle, a Senior Assessment Planner employed by the Council, in his statement of evidence concerning compliance issues raised by the LEP and its subordinate Rockdale Development Control Plan 2011, in my view they are both rendered irrelevant (except to the extent that the applicant now seeks to utilise the process in the LEP for objecting to compliance with development standards as later discussed) by the facultative, overriding provision in the SEPP.

10. There is one matter where there were differing positions of interpretation put by the applicant and the Council. It concerns the appropriate method to be pursued by the applicant in seeking dispensation from compliance with two development standards that are contained in the SEPP.

11. I interpose that, although the applicant, apparently, originally adopted in its development application the process for which the Council contends, after considering legal advice, it concluded that an alternative pathway was the applicable route to be pursued.

12. It has always been the Council's position that cl 1.9 of the LEP causes the LEP to apply to all land within the Council's area. As a consequence, the Council says, if there is to be a dispensation from compliance with development standards, such dispensation must be sought and obtained using the process provided for in cl 4.6 of the LEP.

13. As a consequence of the proposed consent orders, the applicant has agreed to have the two matters of non-compliance with development standards dealt with by objections pursuant to cl 4.6 of the LEP. The Council now accepts, after considering the cl 4.6 objections, that there are appropriate bases to permit departures from the standards involved.

14. The properties to the north of the development site are zoned for medium density residential development and, as later discussed, there is an existing villa development to the north at the eastern end of the development site’s boundary.

The site inspection

15. On the morning of the first day of the proceedings, I visited the site accompanied by the legal representatives of the parties and those instructing and advising them. It was unnecessary, for the purposes of these proceedings, to inspect the interior of the present nursing home. In this instance, although hearing the evidence given informally by the objectors was the primary aspect of what occurred during the site inspection, it was also relevant to view the setback context of the present nursing home on both its Rocky Point Road and Wilson Street frontages and to do that in conjunction with obtaining an appreciation of the existing residential setback pattern on Rocky Point Road to the north of the site and along both sides of Wilson Street.

16. I visited three properties to the north of the northern boundary of the development site - with the second of them being in the villa complex at the eastern end of this northern boundary and having its private open space abutting that boundary. The third property to the north was another in the villa complex adjacent and to the north of the one first inspected in this complex. Owners of properties to the north gave evidence during this element of the inspections setting out their objections to the proposed development.

17. After completing this aspect of the site inspection, I returned to the driveway at the Wilson Street frontage at the south-eastern corner of the existing nursing home site. We did so via the pathway within the present nursing home site along its northern boundary. During the course of this traverse, Mr Hemmings SC, counsel for the applicant, asked me to observe the built form of this aspect of the present nursing home and its proximity to its northern boundary.

18. After returning to the driveway entrance, I heard from four further objectors who were residents of Wilson Street. As the final element of the site inspection, I visited the rear private open space of 6 Wilson Street and heard the objections of the owner of that property (Ms Youssef) to the impacts that she considered the proposed development would have on her amenity (both in her private open space and within her dwelling).

19. I also indicated to Mr Hemmings that, from my preliminary reading of the objections (and such expert report material that I did have) that the only “amber light” aspect of the development appearing to warrant consideration, at that time, was the size of the proposed staffroom. I put this concern to him as the proposed development would have approximately 24 staff members on site at any time and the staffroom proposed as the staff facilities was only 13 m² in size and proposed only one toilet for the use of the 24 staff members. As later noted, this has been addressed in the proposal now being discussed.

The issues

20. The Council set out a number of issues, in its Statement of Facts and Contentions, as being the issues which the Council said warranted refusal of the proposal. The Council also set out a number of areas where it considered that the information that had been provided in support of the development application remained inadequate to enable proper understanding of and assessment being given to the proposal. During the period immediately prior to the hearing and continuing during the evidence of the experts during the hearing, these information gaps were all filled sufficiently to enable proper consideration to be given to all matters requiring analysis. In summary, the matters that were raised by the Council were:

• the height of the proposed development along its northern boundary and what the Council said was its non-compliance with the provisions of the SEPP concerning development along the rear boundary of the site;

• the inappropriateness of the setbacks of the proposed development along both the Rocky Point Road and Wilson Street frontages (with, at least as I understood it, greater emphasis on the concerns with respect to the Wilson Street frontage of the development site);

• the appropriateness and utility of the proposed landscaping;

• whether the floor space ratio of the proposed development as calculated by the applicant (being 0.99:1) was accurate or whether it should be greater than the ratio advanced;

• design and functionality of the driveway and the loading dock to be located at the eastern end of the proposed development; and

• internal and external privacy matters with internal amenity matters including but not confined to whether the sizes of the communal dining and lounge spaces could meet the reasonable needs of the residents.

21. The concerns raised by the objectors during the course of the site inspection and set out in the various written objections lodged with the Council (there being three phases to the objection process prior to the commencement of the hearing as a consequence of a number of revisions being made to the design of the proposed development) generally reflected the matters raised by the Council.

22. The written objections that had been submitted to the Council were included in the Council's tender bundle (Exhibit 1) and the additional written material provided by the objectors during the course of the site inspection was also tendered together with a list of those who spoke during this process. Notes of the oral evidence given informally by the objectors during the course of the site inspection were also tendered.

Vehicle manoeuvrability issues

23. Mr van de Walle, although a town planner, gave evidence on behalf of the Council concerning vehicle manoeuvrability issues relating to the use of the driveway and loading dock. No objection was taken to him being qualified to deal with those matters on behalf the Council. Mr Mulhaire, a traffic engineer, gave evidence on behalf of the applicant on these matters. This evidence was given concurrently. Mr van de Walle and Mr Mulhaire had met and produced a joint report, a report that became Exhibit 6 whilst Mr Mulhaire had, earlier, produced an individual expert report which was Exhibit B.

24. Two matters were dealt with during the oral evidence of these two witnesses. The first concerned whether the expansion of the turning head proposed toward the north-eastern corner of the development site would need to be expanded to the east to facilitate turning manoeuvres for Small Rigid Vehicles (a defined Small Rigid Vehicle being the largest vehicle proposed to be used to access the site) resulting in further constriction of the landscaping space available between that turning head and the boundary of the property to the east (6 Wilson Street) or not.

25. On this point, their agreed position (as shown on Attachment 3 to Exhibit 6) was that the additional 600 mm width necessary - if the Council's concerns were to be addressed in the fashion proposed by the Council - would be added to the west of the turning bay and be accompanied by a revision to the internal line marking within that bay. The consequence of those changes would be the loss of approximately 1.4 m² of landscaping to the west of the turning bay but there would be no alteration to the available landscaping space between the turning bay and 6 Wilson Street.

26. The second matter that arose for consideration related to the location for and operation of the vehicle undertaking waste collection from the site. It was Mr Mulhaire's position, at the conclusion of this discussion, that it would be appropriate to require that:

• any waste collection vehicle be a rear loading Small Rigid Vehicle; and

• loading of waste into such a vehicle should take place with the vehicle backed into the loading dock (I understood, to the maximum extent possible consistent with such loading operation).

27. The second element set out immediately above would have the benefit of having the northern walls of the loading dock act, at least to some degree, as a baffle to noise transmission from these activities to the residences to the north and any future development that might take place to the west of the present villa development to the north.

28. Mr Mulhaire also indicated that it would be appropriate to require the preparation of a loading dock management plan and, as I understood his evidence, it would be appropriate to incorporate a requirement for such a document to be prepared.

29. These requirements were acceptable to the applicant and the loading dock management plan as subsequently prepared was contained in Exhibit J (noted below).

Town planning, urban design and landscaping issues

30. During the course of the first phase of the hearings, it became obvious that a number of potential options for resolving the concerns that the Council had concerning the design of the proposed building (particularly with respect to its set back from Wilson Street and its relationship with adjacent properties to the north and east) had not been sufficiently explored. Discussions between the relevant experts led the advocates for the parties to conclude that, with a deal of further work, it was possible that a revised design outcome could be developed that would enable the Council to consider entering into consent orders for approval. To that end, the proceedings were adjourned to enable this to occur.

The June hearing

31. Mr Hemmings and Mr Cole, solicitor for the Council, advised me that agreement had been reached about a revised design that would be acceptable to the Council but that the Council wished to go through a proper process that notified the objectors of the proposed revised proposal and the conditions of consent intended to be applied to it and to hold a meeting at which Mr Cole and Council staff would be available to discuss the proposed revised scheme with any objectors who wished to attend. The proceedings were, as a consequence, adjourned until mid-July to permit that to happen and to permit, at a resumed hearing, any objectors who still wished to be heard concerning the proposed revised design to be able to give evidence in my consideration of any proposed consent orders.

The July hearing

32. Prior to the July hearing, the applicant filed a folder of material relevant to the resumed hearing. That folder subsequently became exhibit J. It contained:

• a set of revised architectural plans;

• a set of revised landscaping plans;

• a schedule that set out a list of the amendments to the proposal as a consequence of those revisions;

• a loading dock management plan;

• a marked-up version of the proposed consent orders and conditions showing the alterations that were proposed to be made as a result of the agreement between the parties; and

• an objection pursuant to cl 4.6 of the LEP to compliance with development standards contained in cl 40 (4)(b) and (c) of the SEPP (being development standards concerning height limitations adjacent to a boundary of a development site and a control that requires that a building located in the rear 25% of a site must not exceed one storey in height).

An outline of the changes to the proposal

33. The number of proposed beds in the new facility has been reduced from 81 to 76. As a consequence, the number of patient rooms has been lowered from 75 to 70. There has been an increase in the setback of the middle wing on the northern side of the main element of the building so that this wing now complies with the rear 25% alignment requirement of the SEPP.

34. The north-eastern corner setback of the proposal has been increased from 2.75 m to 5.1 m with a resultant realignment of the rooms in this corner of the proposal. There is also been an increase in the setback from Rocky Point Road and a resultant realignment of rooms in the north-western corner.

35. The southern setback to Wilson Street has been increased to 3 m and the terraces that were previously proposed to be somewhat lower than footpath level have been deleted so as to provide additional area for soft landscaping. Coupled with this setback, there has been articulation provided in the southern setback along Wilson Street with four indents of 4.2 m. Finally, the brick colour proposed to be utilised has been made slightly darker by being moved from a light brick colour to a terracotta brick colour.

36. There has also been a rearrangement of and alterations to the facilities proposed to be incorporated in the basement/car parking area at the lowest level. These changes, although not needing to be set out in detail as they are primarily internal ones, are impact ameliorating in their outcome.

37. It is also appropriate to note that the earlier described deficiency in staff amenity facilities has been resolved by the provision of a staff room and associated facilities in the north-western corner of the basement with direct access from this space to a staff only exterior courtyard.

Proposed consent orders

38. As I have earlier indicated, the Council has considered the revised proposed development and has considered the objections to compliance with the development standards. The Council now considers that the design is acceptable; the impacts on neighbouring properties, to the extent that there may be any impacts, are reasonable; and the objections to compliance with the two development standards should be sustained. The Council has, therefore, proposed that I should make consent orders to give effect to the proposal after granting leave to the applicant to rely on the amended plans and associated documents in Exhibit J.

38. The applicant has agreed to the appropriate costs order pursuant to s 97B of the Environmental Planning and Assessment Act 1979 being made as a consequence of the proposed grant of leave to rely on the amended design.

The Court’s role

40. The Court’s role when the parties have reached agreement and propose that consent orders be made is to consider, in this case, the proposed revised design; the loading dock management plan; and the requests, pursuant to cl 4.6 of the LEP, to be permitted to depart from the two development standards discussed in that objection.

41. This process also involves providing an opportunity for objectors who wish to maintain their objections to the proposed development, in circumstances where they consider that the amendments are either insufficient or inappropriate, to explain to the Court why, in their view, the proposed consent orders should not be made. In such circumstances, the Court is to have regard to those submissions and assess whether or not those submissions provide any basis why the proposed consent orders should not be made.

42. I note, particularly, that the test that is to be applied to the design within the framework of the SEPP is not whether the design is one likely to win a prize in an international architectural design competition but, merely, as is conventional in the position in planning cases in the Court, whether the proposed design is acceptable under all the circumstances. It is against that test that I have considered the evidence given by the three objectors who were heard on 15 July as discussed below. It is appropriate that I set out the evidence that was given by each of the three objectors and my response to it.

43. The first objector to be heard was Ms Karsthans, a resident of Wilson Street living opposite the site. There were, as I understood her evidence, four matters of concern to her:

1. fire risks as a result of the range of activities being undertaken in the basement/car parking area;

2. breaches of the height limit development standard;

3. presentation of the proposed development at its Wilson Street frontage; and

4. impacts on neighbouring properties.

44. I am satisfied that, in the circumstances of the application as it is now proposed for approval, that none of these objections stands as an impediment to the development. I have reached that conclusion for the following reasons:

1. With respect to fire safety, the proposed conditions of development consent, in condition 3, require that the development must be constructed in accordance with the provisions of the Building Code of Australia. The Building Code of Australia (or the National Construction Code as it is now more correctly described) mandates a wide range of fire safety measures for buildings such as this is proposed to be. The developer is required, by the condition of consent, to incorporate all the relevant fire safety standards that are mandated by the Code. The Code is considered to be the appropriate design specification vehicle for such matters and the satisfaction of the Code’s provisions by developments such as these is the appropriate and desirable response to such concerns;

2. With respect to the height control, the applicant has made (and the Council has accepted as appropriate), an objection to compliance with the height control standard through the process earlier noted. A copy of that objection was, as earlier noted, contained in Exhibit J – the applicant's bundle of materials concerning the revised proposal. I have carefully read that document, one prepared by MMJ Town Planning, and I am satisfied that the view that the Council has taken is appropriate and that the objection to compliance with that standard should be sustained;

3. The setback at the Wilson Street frontage has been improved by changes to the originally proposed balcony and fenestration treatment along that frontage. Although Ms Karsthans expressed her concern at the aesthetics of that design, given the proposed use of the new facility, the now revised fenestration treatment along the Wilson Street frontage (which is, after all, the southern side of the building) is an appropriate one not merely in a streetscape context, but also to provide an appropriate level of amenity for persons resident in the rooms facing Wilson Street; and

4. Other issues of non-compliance with the Council's development control plan leading to what Ms Karsthans considered to be an over development of the site and unreasonable impacts on the neighbours, at a more general level, do not provide a basis to refuse the development. This arises because, for the reasons earlier set out, the provisions of the SEPP (beneficial and facultative as they are in the furtherance of social policy objectives) set aside the provisions of the development control plan where they are inconsistent with the provisions of the SEPP. Except to the extent necessary for there to be the two cl 4.6 objections to compliance with the development standards in the SEPP, the proposed development is otherwise compliant with the provisions of the SEPP. Whatever might be the position with respect to the development control plan and differences between the development control plan controls and those that are set out in the SEPP, the provisions of the SEPP prevail.

45. I am therefore satisfied that there are no reasons based on matters raised by Ms Karsthans that warrant intervention with, or refusal of, the proposed revised development.

46. The second person who gave evidence was Mr Farmer who is a part owner of 5 Austral Street but who is not a resident of those premises. He had, as I understood his evidence, three of objections to the proposal. They were:

1. privacy impacts on the properties to the north from overlooking from balconies at the northern end of the development at its uppermost level at its eastern end;

2. the risk of smell impacts on properties to the north from exhaust fumes from the basement level kitchen; and

3. the likelihood that trees proposed as part of the landscaping along the northern boundary of the property (within the property) would drop leaves, twigs, fruits and other detritus onto those properties increasing the clean-up necessity for their occupants.

47. He particularly pressed his first, privacy objection, as being one of general importance to all residential properties to the north but of heightened importance for 7 Austral Street, the property adjacent to his own, as this property had a pool in its rear yard closer to the boundary with the development site.

48. During the course of Mr Farmer’s evidence, Mr Cole was granted leave to approach Mr Farmer in the witness box and explain to him, in particular, the nature of the landscaping proposed to be installed at the uppermost level. This landscaping is as depicted in the landscape section plan at L/09 revision B. It not only shows the landscape planting adjacent to the boundary to the north but also further substantial landscaping between the initial slightly lower landscaping and the proposed built form and, finally, planter box landscaping to be installed on the balconies at the upper most level.

49. The landscape planting within the planter boxes on the balconies is shown as growing to a height of between 1.7 and 2m above the floor of the balcony. These planter boxes are on the northern terrace at the eastern end of the development and are shown on the architectural plans (drawing 103 revision M) as being at a distance of 5.1m from the northern boundary. The planter boxes themselves are to a height of 1m above the terrace floor and then contain landscaping which, from the landscape plan to which I earlier referred, can be expected to reach 700mm to 1m above the top of the planter boxes.

50. There is only an extremely limited opportunity for direct approach to a small section of balustrade between the two planter boxes but that balustrade will, itself be 5.1m from the northern boundary.

51. Mr Farmer proposed that I should require a 1.8m high glazed element along this section of the boundary. To do so would, in my opinion, be entirely inappropriate. A combination of the planter box height and the effect it has in preventing people from making a direct approach to the edge of the balcony (save in the area of the small balustrade section), when coupled with the landscaping to be planted in it, is an entirely appropriate privacy response. To require more would be entirely unreasonable.

52. Mr Cole explained to Mr Farmer the ventilation provisions shown on the plans for the kitchen area and I am satisfied that they are appropriate and that there is unlikely to be any adverse impact of this nature.

53. With respect to the overhanging trees and the likelihood of them dropping detritus into the properties to the north, it is appropriate to note that the extent that there will be overhanging of the fence by the trees will be comparatively limited as Mr Cole pointed out to Mr Farmer on the landscape plans. However, I accept that it is likely that there will be some dropping of leaves, twigs, fruits, nuts and other minor detritus from the trees into those properties. Nonetheless the landscaping is established to provide an appropriate softening from and improvement to the amenity of not only the residents of the proposed development but also the residents of the surrounding areas.

54. Although the tree dispute principle published by the Court in Barker v Kyriakides [2007] NSWLEC 292 is one derived from cases where there are disputes between neighbours concerning trees, its underlying principle has an equal applicability in these circumstances. That principle says, in effect, that those who have the environmental and aesthetic benefits of trees in an urban setting should accept the burden of minor grounds maintenance to clean up the depositing of minor detritus from such trees. This is a small and reasonable price to pay when compared to the benefits that urban trees provide. That principle is equally applicable in these circumstances and I do not propose to intervene with respect to the proposed landscaping because of that concern.

55. The final objector was Ms Youssef, the resident of the property that will now be located at the eastern boundary of the proposed development after it has extended into the three allotments to be added to the existing developments site. Her concern primarily related to potential noise impacts given the location of the driveway at the eastern end of the proposed building.

56. I am satisfied that the loading dock management plan addresses issues relating to that element of the revised proposal.

57. To the extent that her noise concerns went beyond that, the operators of the facility, when constructed, will be required to comply with the Industrial Noise Policy, a policy that sets out strict criteria about the extent to which noise is (or more particularly is not) permitted to be transmitted to neighbouring residential properties. The loading dock management plan and the Industrial Noise Policy are, in my view, sufficient answers to her concerns.

Conclusion and orders

58. Having examined the revised plans and considered the cl 4.6 of objections to compliance with the two development standards as earlier discussed and having, separately, individually considered the matters continuing to be raised in objection to the proposal, I am nonetheless satisfied for the reasons set out above that it is appropriate to give effect to the agreement that has been reached between the applicant and the Council on the revised plans and documents.

59. It therefore follows that the orders of the Court, by consent, are:

1. The Applicant is granted leave to rely on the following amended plans and documents:

1. Architectural drawing Nos. 100F dated 30 June 2015, 101I dated 29 June 2015, 102L dated 29 June 2015, 103M dated 30 June 2015, 104H dated 30 June 2015, 105D dated 1 July 2015, 113C dated 1 July 2015, 201I dated 30 June 2015, 202E dated 30 June 2015, 203D dated 18 June 2015, 301 I dated 1 July 2015, 401.D dated 1 July 2015 prepared by McNally Architects.

2. Landscape drawings no. 01 Rev G, 02 Rev G, 03 Rev C, 04 Rev C, 05 Rev D, 07 Rev B, 08 Rev C, 09 Rev B, 10 Rev B, 11 (no revision number) dated 17/6/15, 12 (no revision number) dated 17 June 2015 prepared by A Total Concept Landscape Architects and Swimming Pool Designers.

3. Letter from Traffix dated 1 July 2015 attaching updated loading dock management plan.

4. Clause 4.6 variation request (undated) prepared by MMJ received 3 July 2015.

2. The Applicant is to pay the Respondent's costs that are thrown away as a result of amending the development application pursuant to s 97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed;

3. The Applicant's request made pursuant to clause 4.6 of the Rockdale Local Environmental Plan 2011 in respect of clauses 40(4)(b) and 40(4)(c) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is sustained;

4. The appeal is upheld;

5. Development consent is granted to development application DA-2014/372 lodged on 29 May 2014 for the construction of the Endeavour Nursing Home including demolition of existing structures and construction of a two storey aged care facility with 76 beds and basement parking on Lot 1 DP 342422, Lot 2 DP 342422, Lot 3 DP 342422, Lot 4 DP342422, Lot 3 DP 319727 and Lot 1 DP 188708 at 74 Rocky Point Road, 2, 2B & 4 Wilson Street Kogarah subject to the conditions contained in Annexure A; and

6. The Exhibits, other than Exhibits D, E, J, 5 and 11, are returned.

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Decision last updated: 27 July 2015