Elderly Australian Chinese Homes (NSW) Co-operative Ltd v Baulkham Hills SC

[2005] NSWLEC 547

Land and Environment Court

of New South Wales

CITATION:

Elderly Australian Chinese Homes (NSW) Co-operative Ltd v Baulkham Hills SC [2005] NSWLEC 547

PARTIES:

APPLICANT
Elderly Australian Chinese Homes (NSW) Co-Operative Limited

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

10121 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Aged care facility - Traffic - Access - Streetscape - Solar Access - Public Interest - Parking - Fences - Noise - Amenity.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environment Planning Policy Seniors Living 2004

DATES OF HEARING:

27/07/2005, 28/07/2005 and 09/09/2005

EX TEMPORE JUDGMENT DATE:

09/09/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr. A. Pickles, barrister
instructed by Mrs L. Finn, solicitor
of Abbott Tout

RESPONDENT
Dr S. Berveling, barrister
instructed by Mr P. Vergotis, solicitor
of Matthew Follbig

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 September 2005

10121 of 2005 Elderly Australian Chinese Homes (NSW) Co-operative Ltd v Baulkham Hills Shire Council

JUDGMENT

1 This is a Class 1 Appeal No. 101021 of 2005, between the Elderly Australian Chinese Homes (NSW) Co-operative Limited v Baulkham Hills Shire Council, in regard to the refusal of consent for an aged care facility at No.’s 42-46 Darcey Road, Castle Hill.

2 The site is 4,597 sq m in area, and is not quite square in shape. The western boundary in particular being at a splay instead of at right angles to the adjoining boundaries. The splay boundary is about 77 m long, and at its south-western end it has 5.2 m frontage to Darcey Road. That is its only street frontage and access to the site.

3 The access is at a right angle corner in the road reservation. The actual carriageway of Darcey Road at this corner has been made into a smooth curve around the corner leaving a rough triangle portion of the reservation that is not used by through traffic. There is a narrow service road through this triangular area giving access to the entry drives of No.’s 38, 40, the subject site, and No. 48-50 Darcey Road. There is a vegetated area with grass, shrubs and trees between the through traffic carriageway and the service road. The proposal seeks to widen the narrow service road to 5.5 m to permit two-way traffic.

4 There is a house, swimming pool, and tennis court existing on the site that are to be demolished. The site is on the brow of the hill that runs roughly along the western boundary, from there the land falls about 8 m down to its eastern boundary. There are a considerable number of trees along the north the west and the south boundaries, but few on the east boundary because the tennis court is built close to that side.

5 The application is made under the statute State Environment Planning Policy Seniors Living 2004. The facility will house 30 elderly persons needing only low care level in one wing, and 15 dementia care persons in another wing. There is to be a secure garden for the dementia persons between the wings.

6 The wings run approximately north-south. The low level care wing has two floors of accommodation, and service areas in a semi-basement third level. The dementia wing has one level of accommodation with carparking under for the staff and visitors.

7 Connecting the wings at the southern end is an activities lounge and dining area for the dementia persons. On its roof is a sun deck for the low level care persons. Because of the slope of the site the sun deck is on the same level as the ground floor of the low care wing. The low level care wing is on the high side of the allotment generally along the western boundary, but set at an angle to it, with a garden courtyard between it and the boundary.

8 The ambulance porte-cochere and drop off roundabout is at the south end of the low level care wing. This location is closest to the entry driveway off Darcey Road. The driveway continues downhill parallel to the southern boundary to access the loading bay and the main kitchen, store rooms, laundry and morgue, below the low level care accommodation.

9 The driveway continues downhill past that point to the carpark under the dementia accommodation. The dementia wing is set 6.6 m off the eastern boundary, and the side setback area is used as a stormwater detention pond for the whole site. It has a bund wall running along most of the eastern boundary, and a connection from the ponds to a council stormwater drain in the north-east corner of the site. The underground pipe from that connection point runs in an easement downhill along the northern boundary of No. 7 Lacebark Way.

10 The issues are:

Neighbourhood character, height and scale.

1. The proposed development, due to its height and scale, will have an adverse impact on the character of the neighbourhood and locality.
Particulars. Clause 31 of the Seniors Living SEPP , particularly cll 31(a) and (c), as it does not satisfactorily contribute to the character of the area and maintain reasonable amenity for neighbours. Clauses 32 and 33 of the Seniors Living SEPP in regard to privacy and overshadowing. Clauses 38(4)(c) of the Seniors Living SEPP as it does not comply with the maximum of one storey height in the rear 25% of the site. The objectives of cl 9 of the Baulkham Hills LEP and cl 9 of the Baulkham Hills Draft LEP in that its size, bulk, and scale is not in character with, and does not maintain the predominantly single dwelling character of the area. And whether the State Environmental Planning Policy No. 1 objection is well founded.
2. The proposed development will have an adverse impact on neighbours.
Particulars. Overshadowing, privacy from the location and position of windows, air quality from exhaust fumes, noise disturbance from the loading dock and carriageway.
3. The proposed development will have inadequate solar access.
Particulars. Clause 33(b) of the Seniors Living SEPP requiring windows to be oriented in a northern direction. Minimal north facing windows. Limited sunlight to courtyard. Limited solar access to the western garden.
4. The development has inadequate access and parking on site.
Particulars. Clause 36(b) of the Seniors Living SEPP requiring attractive and safe environment for pedestrians and vehicles, and parking for residents and visitors. This includes the limited carriageway at the site frontage.
5. Inaccuracies in the plans.
Particulars. Fencing details and extent of excavation.
6. Matters raised by objectors.

11 Evidence of the respondent was heard from:

• Mr J Hewitt, traffic engineer;
• Mr A Lester, architect and town planner;
• Messrs S and W Ryan, resident objectors of No. 38 Brae Place;
• Messrs D S and A J Pope, resident objectors of No. 34 Brae Place;
• Mr J Sammour, resident objector of No. 30 Brae Place;
• Mr M Niblock, resident objector of No. 32 Brae Place;
• Messrs J and N Campbell, residential objectors of No. 8 Lacebark Way;
• Messrs S and D Hulthen, resident objectors of No. 9, Stringybark Place;
• Messrs H and L Nguyen, resident objectors of No. 38 Darcey Road;
• Messrs A and W McGill-Morton, resident objectors of No. 69 Castlewood Drive;
• Messrs M and N Welch, resident objectors of No. 7, Lacebark Way;
• Mr A Fisher, resident objector of No. 48-50 Darcey Road;
• Messrs M and R Woolsey, resident objectors of No 40 Brae Place; and
• Messrs P and J Walsh, resident objectors of No. 56 Darcey Road.

12 The applicant’s witnesses were:

• Mr Robson, landscape architect;
• Mr Linus Lim on fire safety;
• Ms K Hurrell, consultant nurse and business management;
• Mr B Murray on acoustics.
  

13 There was also reports in evidence from Planning Collaborative on town planning matters, and Colston Budd on traffic.

14 The parties had agreed that the Court should appoint as expert witness on town planning and urban design Mr M Harrison.

15 Below the eastern boundary there are retaining walls within No. 7 and No. 8 Lacebark Way. Both have swimming pools and recreation yards between the retaining walls and the houses. The owners of those properties are concerned about overlooking of their private open space, noise and fumes from cars using the car park of the proposal, and shadows, and bulk and scale of the building uphill from them.

16 Adjoining the southern boundary are No. 9 Stringy Park Place and No. 48-50 Darcey Road. Number 9 has retaining walls just inside the common boundary, and a pool, and private open space between them and the house.

17 Number 48-50 has its house only 1 m from the common boundary with the proposal. The master bedroom, and an upstairs study-bedroom window face the site, and the truck loading and unloading bay of the proposal. Also an electrical substation is proposed nearby.

18 Both No. 9, and No.’s 48-50 are concerned about noise from operational activities and vehicles on the driveway that runs down almost the entire southern boundary.

19 Numbers 38, 40 and 48-50 Darcey Road are also concerned about congestion of both traffic and parking due to the narrow frontage of the proposal, and they believe too little allowance for on-site visitor parking will result in on-street parking outside their houses causing inconvenience, congestion, and safety sight distance traffic hazards. The narrow width of the service road that gives access to the houses and the proposal will further contribute to these problems.

20 Number 48-50 is also concerned about emergency vehicle access to the proposal causing additional nuisance or potential danger to No. 48-50 in the event of an actual emergency such as a fire.

21 Adjoining the western boundary of the site are No. 40 Darcey Road and No. 40 Brae Place. They had further concerns over privacy, overlooking and the bulk and scale of the proposal. Number 40 Brae Place is also concerned that the landscape plan shows new trees of considerable canopy size overhanging their fence above their new swimming pool and yard area, virtually borrowing their property for growing space.

22 Numbers 30, 32, 34, 36 and 38 Brae Place along the northern boundary of the site were all concerned about privacy and bulk and scale and 24-hour operation of the buildings.

23 This was a further concern of all the objectors due to the noise from fire alarms because they go off regularly as false alarms, potential for public address systems, kitchen exhaust fans, air conditioning equipment, and general activity around a 24-hour, 7-day a week operation in quiet suburbia.

24 They were also concerned about night lighting of the buildings and grounds disturbing the suburban amenity. One neighbour was a keen star gazer using a strong telescope for this purpose.

25 Objectors from further afield at No. 69 and 71 Castlewood Drive, objected to the large buildings proposed being uncharacteristic of the suburban amenity. And, due to the site being on the brow of the hill, and the houses on Castlewood having a direct line of sight of about 160 m approximately from their rear terraces and yards it would have an unacceptable visual impact to their district views, in their opinion, caused by the large bulk and continuous structures up to 50 m in length.

26 Mr Harrison in his reports identifies a number of shortcomings of the proposal but overall he supports approval of the development provided some conditions are applied. He also bore in mind the provisions of the State Environmental Planning Policy Seniors Living 2004 that renders permissible what otherwise would be prohibited. Mr Harrison also notes the size of the buildings are such that they are not sympathetic to the single dwelling character of the area, but such development being made permissible a difference must be expected.

27 He notes the size of the subject lot would enable a sub-division for 5 houses to be built, and some of the impacts such as overshadowing and overlooking to No.’s 7 and 8 Lacebark Way would be the same or similar to the proposal.

28 He notes the frontage of a Seniors living site under State Environmental Planning Policy Seniors Living requires to be 20 m wide at the building line. The frontage of the site is 5.23 m. There is difficulty in assessing the site because it is nearly landlocked, whereas the State Environmental Planning Policy appears to assume a conventional lot with a normal street frontage. He notes that the council report accepted that at the building line there is 30 m plus width of the allotment, and therefore did not press the narrow building width at the street frontage as a reason for refusal. He also added that the narrow frontage meant that many of the urban design issues that were based on streetscape were also negated because there would be very little of the development seen from the street, and therefore there would be little impact upon the streetscape.

29 In regard to building height there is a maximum height limit of 8 m. The only portion of the building that is above that height and the two storey limit requirement is at the truck bay to the semi-basement kitchen and services area. That small section of the building is set 15 m away from the southern side boundary and although it is opposite the Fisher’s house and bedroom windows, Mr Harrison feels the separation is adequate to minimise visual bulk impacts.

30 On floor space ratio the State Environmental Planning Policy has a maximum of 1:1, and the proposal is 0.63:1, and therefore easily complies on that matter which is usually accepted as a rough measure of bulk and scale of a building.

31 On landscaped area the statute requires on this site 1200 sq m, and the proposal provides 1,850 sq m, thereby once again easily meeting the minimum requirement.

32 The requirement under the State Environmental Planning Policy for any building on the rear 25% of the site to be not more than one-storey, is not complied with, no matter which boundary one selects as the rear one. That selection is difficult given the almost landlocked allotment. Mr Harrison says due to the lack of clarity of the State Environmental Planning Policy on this, and the slope of the land, he does not feel it is sufficient for refusal.

33 If the east boundary is accepted as the rear of the allotment then the two-storey breach commences to occur 15 m from that boundary. Mr Harrison says, “The set back of the dementia wing from the eastern boundary is 6.655 m.” So initially the breach of the height limit appears to be a major infringement, however on closer examination Mr Harrison says, “It is only the upper 0 to 2 m variable of the top of the building that could be considered as the infringement because the car park level plus the accommodation level is not a full two storeys above the projected natural ground level ignoring the existing tennis court.” He said, “A merits assessment of shadows and overlooking and bulk is the best way to deal with this statutory requirement in considering the State Environment Planning Policy No. 1 objection.”

34 On overlooking, he notes that the plan amendments of the design tendered during the hearing show masks on the windows on the eastern elevation at sill level that prevent a person in the rooms looking down into the neighbours’ yards. On bulk, he notes the re-design of the roof of the dementia wing to create two low pyramidal roofs, one on each end of the building to break up the visual mass.

35 On shadows, updated shadow plans were tendered. Initially these seemed to be out of kilter with helium balloons that the objectors had strung to show building heights. It was seen, however, when height poles were erected and verified by both parties, that the building heights would be much lower than the balloons.

36 The shadow plans were reviewed by Mr Lester and Mr Harrison, and Mr Lester showed that, in fact, given corrected contours and relative floor heights, the shadows from the dementia wing onto No.’s 7 and 8 Lacebark Way on 21 June actually got to the houses just after 2pm, and not at 3pm as on the applicant’s plans. However, Mr Harrison concluded that it meant, even on the worst day of the year, those houses still had sun on their rear yard, pool and terrace areas for most of the day, and at other times of the year they had better solar access.

37 The erection of accurate height poles had a bearing on the concerns of the objectors from Castlewood Parade as their opinions were based on the balloon heights that the objectors had put up. The correct heights shown by the height poles indicated that existing trees and proposed trees would break up any view of the full elevation of the proposal. Whilst it would still be different to the single dwelling character, the State Environmental Planning Policy Senior Living overcame that provided there was reasonable compatibility. Mr Harrison concluded that reasonable compatibility had been achieved.

38 Although not greatly relevant, or applicable to the current situation, Mr Harrison said a two-storey house on the subject site could be built as close as three metres to the eastern boundary and cause much worse bulk, overlooking and shadows than the proposal.

39 The objectors said that at least it would only be two houses along the eastern boundary, not one continuous building, and only two families versus the many patients, and their doctors, nurses, cleaners, and visitors who would cause a change to the single dwelling residential character and amenity.

40 It was noted, however, whilst standing in the objectors’ yards at No.’s 7 and 8 Lacebark Way that, given the set back of the dementia block from the eastern boundary, and given the fence height, it was unlikely that persons in the backyards of those two houses would be able to see the dementia wing, it would only be from actually inside their living rooms that they might obtain some glimpse of the top of the building. There was to be boundary shrub planting that would probably in time delete even that view.

41 In regard to disturbance of the residential amenity, all of the residents attested to the quietness of the surroundings, especially at night, and this was verified by Mr Murray’s acoustic report.

42 The objectors were also concerned about the car park under the dementia wing as it has natural ventilating louvres in the eastern wall and open north and south ends that must mean car exhaust noise reverberating to the nearby houses, especially No.’s 7 and 8 Lacebark Way, and No. 9 Stringybark Place, No. 48-50 Darcey Road, and possibly some of the houses adjoining the carpark off Brae Place.

43 Mr Murray’s report showed that indeed traffic noises could reach sleep arousal for the bedrooms near the vehicle paths. The objectors asked why could not the car park be under the low level care wing and completely underground? The applicant put that the centralisation of the kitchen, storage, laundry, and service facilities, made being under the low level care wing the best operational location.

44 Having mentioned the laundry, the objectors were concerned about another two laundries shown at the northern end of the low care wing, and their concern that the laundries would operate 24 hours a day. It was explained those laundries were for residents of the low care accommodation who still liked to do their own personal washing. All the major washing would be done in the basement central laundry where it could not disturb neighbours.

45 The applicant sought to minimise neighbours’ concerns about 24 hour operation by establishing staff shift times to minimise vehicle movement, and organise daytime service trucks, and where possible have reversing beepers switched off. Also night lighting would not be floodlights, it would be low key, low to the ground, path lighting.

46 On the visitor parking, the traffic engineers said that this type of facility did not generate a lot of visits to the elderly residents, and that the 17 carparks were be enough for both staff and visitors, and would not cause congestion on the street. The objectors said they had, at the invitation of the institution, visited other similar facilities and noted considerable on street parking. They doubted that the evidence was correct. Some of the objectors had nursing experience with similar institutions and believed that visitors would exceed the four spaces allocated amongst the seventeen total in the car park.

47 Notably the council did not press this point as the proposal complied with the State Environmental Planning Policy requirements for visitors and staff parking, and additional could not be required. There was no evidence to show the basis of the State Environmental Planning Policy Seniors Living 2004 requirement, for instance whether or not it was based on the assumption of a conventional allotment having a considerable street boundary frontage where on street visitor parking of vehicles could occur.

48 Mr Harrison felt that the privacy concerns of the neighbours on the west and the north of the site could be overcome by sight screen louvres on the first floor windows, and the ground floor windows would be below the fence height. He noted the levels of the courtyard gardens would also mean patients were below fence height, and those on the first floor terraces were at a distance of twenty metres or more by line of sight to the neighbours’ private open spaces. Separation distance alone was sufficient for privacy, and the existing and proposed boundary vegetation would further reduce this impact.

49 The new house on No. 40 Darcey Road had no windows, or private open space that could be impacted, Mr Harrison said. Noise from the courtyard gardens of the proposal would not cause aural privacy problems as elderly patients, in the low level care wing, were known to be quiet, and the dementia wing courtyard was between the two main wings of the on-site buildings, and would screen out any noise from the neighbours.

50 Whilst agreeing that the solar access to the individual bedrooms would be limited to morning and afternoon sun because they faced east or west, it was noted that the terms of the State Environmental Planning Policy was that living room and common area rooms should have windows that were north facing. In the case of both the low level care wing and the dementia wing this had been carried out, and along with the courtyards being north facing, any residents of the development would have good solar access.

51 Number 48-50 Darcey Road expressed another concern in regard to the proposed electrical kiosk substation. It had originally been proposed adjacent to the common boundary, once again near the bedroom windows. It had been moved in the subject amended plans to be near the truck bay. There was still a concern that it would cause a buzzing sound that would disturb sleep at night. Mr Murray assured the Court in a written report that the kiosk would give rise to only 20 decibels noise at the Fisher’s bedroom window when 33 decibels was the night time ambient noise level there now. Mr Murray said that the kiosk would be inaudible.

52 On the narrow access to the site there was also concern about emergency vehicle and garbage truck access as it would not provide simultaneous two-way Traffic. The traffic engineers and the fire brigade, whilst acknowledging it did not strictly comply, said the pinch point being only about 6 m in length before two-way movement was possible they did not regard it as a reason for refusal.

53 An evacuation management plan was tendered in exhibit H, and an operational statement in exhibit O, and residents’ transportation plan in exhibit K, all indicating that the limited width of the entry to the site could be managed to be a safe entry and egress point for both pedestrians and vehicles.

54 Overall it seemed to me that the evidence shows three matters of concern that might lead to refusal. One is the noise on the driveway, the second is the noise in the car park, and the third is the use of the loading dock.

55 I believe the driveway noise could be shielded by an acoustic wall on the south side and the east end of the driveway. It would be screened from view of the neighbours by existing and proposed vegetation. The acoustic report that Mr Harrison required could deal with that matter.

56 The noise in the carpark of car exhaust reverberating through the natural louvre ventilation could be resolved by the carpark being sealed, and ventilated by mechanical equipment being installed. If the equipment and the exhaust ducts are located on the west side of the dementia wing, away from the houses, no disturbance should result.

57 The use of the loading dock must be controlled to prevent use between 6pm and 7am, 7 days a week, and any vehicles using it must have their reverse beepers switched off. A roller shutter if needed for the bay must also be of a type that is quiet in operation. I note the only shutter shown is to the garbage store.

58 Another matter that is not an obvious part of the proposal, is that there should be a precautionary condition that there be no external public address system, nor any internal system, or alarm, that would be audible at any neighbour’s boundary.

59 In view of these matters it is reasonable to grant deferred commencement consent subject to the necessary amended plans being prepared and submitted to the council for its satisfaction.

60 Given the State Environmental Planning Policy No. 1 objection lodged to the development standards, and the lack of explicit reasons for the standards, I find that the assessment of the objections as tendered in the hearing, and as considered by Mr Harrison, demonstrated reasonable achievement of the implicit objectives, and therefore the SEPP 1 objection may be upheld.

61 Given the conditions prepared by the respondent and the applicant with appropriate additional conditions as referred to in this judgment, I can find no issue sufficient for refusal, and therefore the orders of the Court are:

1. The appeal is upheld.
2. Deferred commencement consent is granted in accordance with s 80(3) of the Environmental Planning and Assessment Act 1979 and Regulations for an aged care facility under State Environmental Planning Policy (Seniors Living) 2004 at Nos. 42-46 Darcey Road, Castle Hill, as shown in drawings in Exhibits B, C, R, all as amended by and built in accordance with the conditions in Annexure “A” hereto.
3. The exhibits are returned to the parties except Exhibits A, B, C, E, F, H, J, K, P, R, U, 6, 8, and 9.
4. No order as to costs.

___________________

K G Hoffman
Commissioner of the Court
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