Group Homes Property No. 7 Pty Limited v Mosman Municipal Council

[2020] NSWLEC 1647

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Group Homes Property No. 7 Pty Limited v Mosman Municipal Council [2020] NSWLEC 1647

Hearing dates:

12-13 October 2020

Date of orders:

11 February 2021

Decision date:

16 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application No. 8.2019.30.1 for alterations and additions to an existing dwelling house and change of use to a group home at 23 Pindari Avenue, Mosman, subject to conditions of consent at Annexure ‘A’.

(3) All exhibits are returned, except for Exhibits C, D, E, F, G, J, K, L and M.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to a dwelling house – State Environmental Planning Policy (Affordable Rental Housing) – Division 7 Group homes

Legislation Cited:

Aged Care Act 1997 (Cth)

Environmental Planning and Assessment Act 1979 s 4.16

Mosman Local Environmental Plan 2012 cll 4.3, 4.3A, 4.4, 64 and 6.6

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 42, 43 and 46

Cases Cited:

Walton v Blacktown City Council [2011] NSWLEC 1008

Walton v Blacktown City Council [2012] NSWLEC 106

Texts Cited:

Aged Care Quality Standards

Stormwater Policy in Mosman

Australian Standards 2890.6:2009

Category:

Principal judgment

Parties:

Group Homes Property No. 7 Pty Limited (Applicant)
Mosman Municipal Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Landerer & Company (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2019/201372

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal of Development Application No. 8.2019.30.1 (the DA) by Mosman Municipal Council (the Respondent). The DA seeks consent for alterations and additions to an existing dwelling house and change of use to a group home (the proposed development) at 23 Pindari Avenue, Mosman (the site).

2. The background facts and contentions are set out by the Respondent in the Amended Statement of Facts and Contentions filed with the Court on 8 September 2020, and marked Exhibit 2.

3. Subsequent to the filing of Exhibit 2, the Applicant sought leave to amend the application and rely upon amended plans and other documents. The Court granted leave on Friday, 9 October 2020, prior to the commencement of proceedings on Monday, 12 October 2020. The amended plans were ‘blended’ with the plans for which leave was granted in August 2020 to form Exhibit A.

The site and its context

4. The site is located on the eastern side of Pindari Avenue in Mosman, opposite the intersection with Euryalus Street.

5. A two storey rendered brick dwelling house occupies the site fronting Pindari Avenue and adjoins No 25 Pindari Avenue to the rear.

6. No 25 Pindari Avenue is a battle-axe allotment, located ‘behind’ No 23 Pindari Avenue. A driveway is located along the northern boundary of the site to provide access to No 25 Pindari Avenue, over which the subject site has a benefit of a right of way.

7. The site falls steeply between No 23 and No 25 Pindari Avenue with an average gradient of 12% or around 3.6m to the east (rear).

8. The site is legally described as Lot 1 in DP 786236 having a total area of 699.7m².

9. The site is identified within the Middle Harbour/Pearl Bay Townscape.

Onsite view and public submissions

10. Exhibit 2 sets out the following chronology of the DA from the time it was initially lodged by the Applicant with the Respondent.

• On 20 March 2019 Development Application 8.2019.30.1 was lodged with Council.

• The original application was notified from 21 March 2019 to 5 April 2019, with submissions from 25 properties in the area being received objecting to the proposal.

• On 14 May 2019 Council refused the development application.

• On 28 June 2019 a Class 1 Appeal was filed with Court against the refusal of the DA.

• On 11 August 2020 the Applicant was granted leave by the Court to rely on amended plans and documentation.

• On 19 August 2020 the amended plans and documentation were placed on public notification, with 105 submissions raising objections against the proposal received.

11. Prior to the proceedings, the parties sought an onsite view with limited participants in accordance with the Court’s COVID-19 Pandemic Arrangements Policy.

12. At the onsite view, I was taken to the front of the subject site, and to the rear deck that overlooks No 25 Pindari Avenue.

13. I was also taken on to the property at No 25 Pindari Avenue to look back at No 23 Pindari Avenue, including to the deck referred to above.

Public submissions

14. Prior to the hearing, the Respondent was granted leave for seven objectors to provide oral submissions via Microsoft Teams at the outset of the hearing.

15. Public submissions are found at Exhibit 1, tab 15, and in Exhibit 5. Additionally, eight (8) objectors were heard as the owners of No 25 Pindari Avenue wished to be heard independently. Those submissions are summarised below.

1. The oral submission made by Mr Stuart Halfen of No 25 Pindari Avenue may be summarised as follows:

• The proposal will remove landscaping and impose hardstand in the front setback.

• The driveway that is the subject of the Right of Way is steep, and may impose a public liability on the owners of No 25 Pindari Avenue which is relevant as it is proposed by the Applicant to use the driveway during construction.

• A sightline to the private open space of No 25 Pindari Avenue is obtained from the rear balcony, and from windows facing that direction.

• The documents prepared by the Applicant contain discrepancies, in particular between the landscape plans, architectural plans and the acoustic report.

• The operation of the facility proposed will impose screams and cries of the occupants on neighbours.

• Emergency escape from No 25 Pindari Avenue will be blocked in the event that emergency vehicles are called to attend No 23 Pindari Avenue

• Emergency escape from within the facility at No 23 Pindari Avenue may also be compromised by the width of the stair that is serviced by a stair lift.

2. Ms Pryor is also resident at No 25 Pindari Avenue and whose oral submission is summarised as follows:

• The battle-axe arrangement of the properties at No 23 and No 25 Pindari Avenue is explained by the history of the two sites accommodating a single family.

• This explains the close proximity and overlooking of the sites, being separated by only 900mm at the eastern boundary of No 23 Pindari Avenue.

• What is now proposed is a facility that will operate 24-hours/day without stoppage on school or public holidays, weekends or the like.

• Noise, movement, visiting medical and nursing staff, families and other deliveries and services will be constant, and will adversely affect the family’s sense of safety and security.

• The application has already caused the family stress and anxiety.

3. The oral submission made by Mr Twyford on behalf of Mr Elsmore, resident of No 21 Pindari Avenue, may be summarised as follows:

• The amended plans impose further visual and acoustic privacy impacts on the property at No 21 Pindari Avenue.

• Where previously the garage enclosed the impacts, the elevated parking structure is now likely to result in headlight glare to the upper storey of No 21 Pindari Avenue.

• While acoustic treatment is proposed to the boundary with No 25 Pindari Avenue, none is proposed to No 21 Pindari Avenue. That said, the acoustic wall, while necessary to address noise impacts, would likely obstruct views to the water as will the proposed screen to the boundary with No 25 Pindari Avenue.

4. The oral submission made by Ms Burge-Gibson, of No 30 Pindari Avenue may be summarised as follows:

• There are concerns at the staffing hours and ratios, deliveries and support services, that will adversely impact parking in an area with limited on-street parking and school-related traffic congestion.

• Bus services to the area are limited and do not cater to staffing shifts at the site, increasing the likelihood of private car use.

• A timely response to life-critical calls is essential, however access for emergency response vehicles is already limited given the street width and traffic congestion.

• The traffic report, prepared by Mr McLaren is inadequate.

5. The oral submission by Mr Sommers, of No 30 Pindari Avenue, may be summarised as follows:

• In contrast to the Applicant’s promotional material, the proposed facility is not “Just like your home”, but is a secure, staffed, sprinklered, serviced commercial facility that will accommodate more occupants than a family home, and generate more noise and more waste.

• The symptoms of dementia are real, and occupants are likely to impose anti-social behaviours, such as moaning and groaning, on residents.

• Privacy and acoustic impacts are likely to result from the rear deck, and from windows in the upper east-facing bedrooms. The acoustic report (Exhibit E) also confirms occupants will not be permitted to watch television or listen to music in upper level bedrooms on the site.

6. The oral submission made by Mr Mare, of No 23 Euryalus Street addressed matters of car parking, buses and near accidents in the street, and questioned whether the site was fit for purpose.

7. The oral submission from Ms Robertson, of 17 Pindari Avenue, may be summarised as follows:

• With 20 years’ experience in health care, Ms Robertson is familiar with the Applicant’s business model that erroneously claims to be based on the ‘Green House Project’ from the US.

• The model is not regulated under the Aged Care Quality Standards or the Aged Care Act 1997 (Cth).

• The Plan of Management has been changed a number of times during the evolution of the application which is unusual.

• Access for emergency vehicles is not assured.

• Six out of eight occupants reside on the top floor, and rely on stairs for mobility that may, in practice, result in occupants being confined to the small bedrooms.

8. The oral submission of Mr Graham Cooper of No 20 Pindari Avenue, may be summarised as follows:

• The Applicant’s consultation with the community has been deficient over the 18 months the application has evolved.

• The Applicant is not a small operator, but a large, for-profit, corporate entity.

• The definition of a ‘Group home’ extends to those with drug and alcohol dependency and other psychological conditions. As consent runs with the land, the facility could fall into other hands who may disregard the Plan of Management.

• The site is not appropriate given the steep terrain, and the facility is not fit for purpose, as not every bedroom has an ensuite and communal areas such as dining and kitchen are on a different level to bedrooms.

• This is in contrast to the ‘Green House Project’ model that is generally single storey on flat land and where support and services is shared.

• The small facility fails to demonstrate a safe infection capability in the event of infection. For example, isolation of occupants is not possible.

Statutory framework

16. The site is located within the R2 Low Density Residential zone identified in the Mosman Local Environmental Plan 2012 (MLEP) in which dwelling house development is permitted with consent.

17. The objectives of the R2 zone are in the following terms:

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

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

•  To retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

•  To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

•  To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

•  To ensure that development is of a height and scale that seeks to achieve the desired future character.

•  To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

•  To minimise the adverse effects of bulk and scale of buildings.

18. The parties are agreed that the proposed development complies with the following development standards and other provisions in the MLEP:

1. Clause 4.3 of the MLEP stipulates a maximum building height of 8.5m.

2. Clause 4.3A of the MLEP contains additional provisions, including a maximum wall height of 7.2m.

3. Clause 4.4 of the MLEP confirms that a floor space ratio (FSR) of 0.5:1 applies to the site, and the proposed FSR is 0.42:1.

4. Clause 6.6 of the MLEP contains a requirement for 40% of the site area to be landscape area, and the amended plans at [3] provide a complying area.

19. The site is identified on the Scenic Protection Map, at cl 6.4 of the MLEP. In accordance with cl 6.4(3) of the MLEP, consent must not be granted unless the Court is satisfied that—

(a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and

(b) the development will maintain the existing natural landscape and landform.

20. As the development the subject of the DA is for a Group Home, the provisions found in Division 7 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply.

21. Clause 42 of the SEPP ARH defines a “group home” in the following relevant terms:

(1)  In this Division—

group home means a permanent group home or a transitional group home.

permanent group home means a dwelling—

(a)  that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and

…

but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.

prescribed zone means—

(a)  any of the following land use zones or a land use zone that is equivalent to any of those zones—

…

(ii)  Zone R2 Low Density Residential,

…

22. A group home located in an R2 zone is permitted, by cl 43 of the SEPP ARH, with consent.

23. Furthermore, cl 46 of the SEPP ARH provides, relevantly:

46   Determination of development applications

(1)  A consent authority must not—

(a)  refuse consent to development for the purpose of a group home unless the consent authority has made an assessment of the community need for the group home, or

(b)  impose a condition on any consent granted for a group home only for the reason that the development is for the purpose of a group home.

(2)  This clause applies to development for the purpose of a group home that is permissible with consent under this or any other environmental planning instrument.

24. The Applicant has prepared a community needs study marked Exhibit P in accordance with cl 46(1)(a). In respect of cl 46(1)(b), the Applicant submits that certain conditions of consent proposed by the Respondent are in contravention of the prohibition on the imposition of a condition that is sought to be imposed for the reasons that the development is a group home.

Consideration

Impacts on adjoining properties

25. The Court was assisted by experts in town planning, Mr Ben Tesoriero for the Applicant, and Mr Peter Wells for the Respondent who conferred prior to the hearing in the preparation of a joint expert report marked Exhibit 4.

26. As a result of joint conferencing, the experts reached agreement on all matters relating to each of the contentions set out in the amended Statement of Facts and Contentions marked Exhibit 2.

27. Notwithstanding this agreement, the experts were required to provide oral evidence in respect of matters arising from public submissions. In particular, the submission provided by Mr Twyford at [15(3)] expressed concern at possible view loss from a 1.8m privacy and acoustic screen to the deck closest to the eastern boundary.

28. Mr Tesoriero relies on the survey at Exhibit C which shows the relative levels (RLs) of certain features on the subject site, and on No 21 Pindari Avenue. In summary, Mr Tesoriero is of the view that:

1. A 1.8m high screen on the main east-facing deck of No 23 Pindari Avenue will achieve a top of wall RL of 56.40. As the screen runs perpendicular to the northern wall of No 21 Pindari Avenue, and is only 200mm higher than the existing screen in the same location, it is unlikely to impose a visual barrier to No 21 Pindari Avenue.

2. Existing windows in the north facing wall of No 21 Pindari Avenue are surveyed with a top of window RL of 58.86, 59.91, 61.08 and 61.14. The view from the lower windows is obscured by substantial existing vegetation.

3. The view from the higher windows is elevated well above the screen which appears at a similar level as the roof of No 25 Pindari Avenue.

29. Mr Tesoriero’s opinion is shared by Mr Wells who also considers the view from the higher windows to the water at Middle Harbour to be oblique across a side boundary.

30. On the basis of the expert evidence, I am satisfied that the proposed visual and acoustic screening will not result in a visual impact to or from Sydney Harbour in accordance with cl 6.4 of the MLEP.

31. Relatedly, the experts are agreed that unlike the existing timber slatted screen, the proposed screen is solid to achieve an attenuation value of 12-15dB, as specified by Acoustic Logic in Annexure D of the joint report. This is appropriate in the location of the main deck as it is 900mm from a window at No 25 Pindari Avenue.

32. The same visual or acoustic screening is not necessary on the minor deck adjoining the dining room as the distance between the minor deck and the private open area of the No 25 Pindari Avenue is greater, and can be addressed by changing existing clear glass balustrade panels to translucent panels so that a sightline to the pool at No 25 Pindari Avenue is obstructed from standing eyeline for somewhere between one third and one half of the depth of the deck.

33. Additional safeguards are proposed in the wording of Condition 28 and 29, according to Mr Wells, as it requires the Applicant to submit the full details of the screening and balustrade amendments to the Respondent for approval prior to the issue of the Construction Certificate.

Provision of on-site parking is agreed

34. The plans marked Exhibit A substantially resolve the contention in respect of the provision of on-site car parking. The plans do so by providing an elevated parking platform that is on grade with Pindari Avenue, and is without a structure over or an enclosure in the form of a garage as was previously the case.

35. The parties are agreed that the provision conforms to Section 5.10 of the Mosman Development Control Plan 2012 (MDCP) as follows:

“O1. To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting.

P1 Vehicular crossings should not be more than 3m in width. This width may vary if it can be shown that safe vehicular access is adversely affected by the width restriction

..

O3. To have adequate on site car parking provided so that development does not generate additional on street parking demand.

O4 To have facilities that are designed to have adequate provision for the parking and manoeuvring of motor vehicles, and having regard to accessibility for traffic, cyclists and pedestrians.”

36. In support of the number of parking spaces provided, which the MDCP requires to be on a merit basis, the Applicant relies on a traffic survey (Exhibit F, pp4-5) undertaken between 30 July 2019 and 1 August 2019 that recorded spare capacity in on-street parking. In addition, the Applicant states that as approximately 85% of their staff use public transport (Exhibit D, p17), staff parking is not required.

36. To assist the Court on parking and traffic matters, the parties engaged experts including Mr Daniel Fonken for the Applicant and Mr Christopher Saunders for the Respondent.

37. The experts agree that the provision of 2 parking spaces is appropriate, and that the accessible zone complies with AS2890.6:2009 (Exhibit N). However, Mr Saunders is of the view that when the car spaces are unoccupied and the motorcycle space is also unoccupied, it is possible for a vehicle to manoeuvre into the space reserved for accessible circulation.

38. In support of which, Mr Saunders has prepared a swept path analysis in Annexure B of Exhibit S, re-produced below.

40. The experts agree that the risk of the accessible space being occupied by a vehicle is removed by the addition of a bollard, which is consistent with AS2890, and is shown in Annexure C of Exhibit S.

41. The Applicant seeks a direction from the Court in respect of the bollard. For the reasons set out by the experts in Exhibit S, I accept that the risk of a vehicle occupying the accessible zone to be low. However, I consider the imposition of a bollard as a condition of consent to be appropriate as it, firstly, removes the risk which I accept to be low, and secondly, it is consistent with an Australian Standard from which a reason to depart has not been made out.

The conditions are disputed

42. While there are no contentions in dispute between the parties, there is disagreement on the form of the conditions of consent, should the Court be minded to grant consent.

43. The Respondent’s proposed conditions of consent are marked Exhibit 6, and the Applicant’s conditions in reply are marked Exhibit R.

44. In my view, the conditions in dispute fall broadly into four categories;

1. The operation of the group home.

2. Stormwater system design.

3. Waste.

4. Acoustic treatment.

Operation of the Group Home

45. The Applicant argues that the effect of cl 46(1)(b) of the SEPP ARH is that conditions must not be imposed on the proposed development if the conditions are in respect of the development being for a group home.

46. The Applicant submits that Condition 26 and Conditions 91-94 are sought by the Respondent for the sole reason that the proposed development is a group home, and the conditions seek to regulate certain aspects of the operation of the group home. These aspects are largely dealt with in the Plan of Management (Exhibit L), with which the Applicant must comply as required by Condition 95, and which is not contested.

47. However, according to the Respondent, the decision of Biscoe J in Walton v Blacktown City Council [2012] NSWLEC 106 (Walton 1) supports the imposition of conditions, not because the development is a group home, but because of the number of unrelated occupants to be accommodated in the dwelling.

48. His Honour’s decision was in review of the earlier decision of Commissioner Tuor in Walton v Blacktown City Council [2011] NSWLEC 1008 (Walton 2), in which the Commissioner explained her reasons for the imposition of conditions at [32] as follows:

“Accommodating even 12 unrelated people as a single household with shared kitchen, bathroom, laundry or communal facilities has the potential for conflict and unacceptable internal and external social impacts. To mitigate this impact there needs to be clear guidelines as to the rights and responsibilities of the occupants and the operator in the form of a PoM and an on site manager or caretaker.”

49. The Applicant submits that, unlike the common position taken by his Honour and Commissioner Tuor in Walton 1 and Walton 2, the application includes a Plan of Management and proposes to staff the group home.

50. Section 3.2 of the Plan of Management sets out the visiting hours that are identical to those set out at Conditions 91-93. Condition 91 limits the visiting hours for family and friends of residents of the group home. Condition 92 limits the visiting hours for maintenance, deliveries and services. Condition 93 limits the visiting hours of doctors, allied health staff, support team and other visitors described as hairdresser, podiatrist and carers.

51. Condition 94 requires delivery vehicles to not at any time park or use the driveway located on 25 Pindari Avenue, being the driveway over which the subject site has a right of way.

52. Mr Galasso SC submits that the Applicant is powerless to dictate how and where deliveries such as online supermarkets choose to park in the course of making the delivery and so seeks the condition to be deleted.

53. According to documents supporting the application, the proposed development “will maintain the existing low-density residential use of the site and operate at a domestic scale” (Exhibit D, Section 3.9) consistent with “research that found people living with dementia thrive in a home environment” (Exhibit P, p9). Furthermore, “the operation of the group home will provide a safe and welcoming home whilst having minimal impact on the surrounding neighbourhood”. (Exhibit L, piii)

54. While I consider these to be reasonable statements of commitment by the Applicant that it no doubt intends to fulfil, the group home, while domestic in scale, is within the portfolio of the Applicant, Group Homes Australia who, I am satisfied, has the capability to ensure that the condition, as drafted, is complied with as it is consistent with the statement made by the Applicant in the Plan of Management at Section 3.3.1 that “delivery drivers will be instructed to either use an on site car parking spot or use on the street parking” (Exhibit L, pvii).

55. The Applicant will be aware, as many homeowners are aware, that online deliveries, if this is indeed the means by which the proposed development is to be serviced, generally provides for instructions to drivers as to the particular means of parking and access to ensure the right delivery makes it to the right door.

56. It is not unreasonable to expect that the Applicant has a more sophisticated system in place than is available to the average homeowner because the Applicant is not the average homeowner. The imposition of Condition 94 is, in my view, appropriate as it relates to a right of way that benefits the subject site, will assist the Applicant in its commitment to have a minimal impact on the surrounding neighbourhood, and would be reasonable to impose whether or not the proposed use is for a group home or other permitted use on the site.

57. I also accept that it is reasonable for Conditions 91-93 to be imposed. In arriving at this conclusion, I do not understand the conditions to be proposed only for the reason that the development is for the purpose of a group home, but would be applicable to any form of development in which such a number of unrelated occupants were residing, such as a boarding house which is also permitted by consent in the R2 zone.

58. As the conditions are therefore not understood to be exclusive to a group home, the imposition of Conditions 91-93 are permitted by cl 46(1)(b) of the SEPP ARH.

59. In finding that Conditions 91-93 should be imposed, I also accept that it is reasonable for the text ‘excepting emergency situations’ to be inserted at Conditions 92 and 93, as it is already at Condition 91.

60. Next, Condition 15 as drafted by the Respondent is in the following terms:

“The kitchen and a wheelchair accessible bench area must be accessible in accordance with AS1428.1[2009] version and AS4299-1995. Details must be provided with the Construction Certificate demonstrating full compliance with this Australian Standard.”

61. The Respondent submits that the condition does no more than reflect the commitment in Section 1.6 of the Plan of Management (Exhibit L, pv) which is, in summary, to involve residents in day-to-day activities that include cooking and baking.

62. According to the Applicant, the relevant words in Section 1.6 are that “the majority of our residents do not have the cognitive ability to perform the above-mentioned household duties independently”. It is for this reason that homemakers ask residents “to please ‘help them’ cook dinner”.

63. The parties agree that the reference to AS4299-1995 should be deleted but ask that the Court provide direction in respect of Section 1.6 of the Plan of Management.

64. After careful consideration of the plans, the Plan of Management, and the parties’ submissions, I consider it reasonable for the centre bench to be designed to be wheelchair accessible. This is because:

1. Firstly, while detail is yet to be applied to the plans, the centre bench appears to be in a location that is distant from appliances that could be the source of risk or harm to a resident or residents who may be engaged in cooking or baking activities.

2. Secondly, requiring the kitchen benches and cupboards more generally to be wheelchair accessible assumes a greater level of independence than is suggested by Attachment A (Exhibit L) which outlines the levels of care required by residents.

Stormwater system design

65. Condition 21 requires stormwater from the site to be directed to the front of the site via a pump-out system that is connected directly to a Council pipe or pit and not connected to the street gutter.

66. This is due, in part, to there being no easement currently in place to permit stormwater to be carried through downstream properties and the Respondent submits it has been reasonable in setting aside the provision of the Policy for Stormwater Management in Mosman (Stormwater Policy) that otherwise requires the use of pump systems for disposal of surface stormwater (Section 1.5.5).

67. The Applicant submits that a reasonable alternative has been designed. As I understand it, roof water is proposed to be effectively ‘stored’ on site in a charged system and stormwater is only pumped to the kerb and gutter in Pindari Avenue in the event of rain so will only contribute rainwater to a gutter in the street that is already running with rainwater.

68. Furthermore, rainwater flowing in the kerb and gutter is collected by the pit to which the Respondent seeks the Applicant to connect directly and so a direct piped connection to the pit is unnecessary.

69. Exhibit 7 measures the closest downstream pit on Pindari Avenue at 75m from the subject site in a northerly direction.

70. Section 4.3 of the Applicant’s Stormwater Management Report (Exhibit T) states that, in lieu of a mandated discharge rate to a kerb and gutter, the Applicant proposes to discharge at a rate of 25L/s in a 1:20 year event, comprising the aggregate of the western and eastern catchment, and the roof catchment.

71. Relatedly, Condition 22 requires the reuse of rainwater and onsite detention, consistent with Section 5.13 of the MDCP at planning control P5 and P7, and conforming to the Stormwater Policy (Exhibit 1, tab 5).

72. Section 2 of the Stormwater Policy deals with onsite detention. Section 2.2(vi) confirms the section applies to “alterations and additions which in the opinion of Council's Director Environment and Planning will have an impact on the capacity of Council’s stormwater pipeline system”.

73. Section 2.3(i) of the Stormwater Policy applies exemptions where the increase in an impervious area on the site is less than 5% of the total site area. As the proposed development increases an impervious area by more than 5%, the Respondent submits that the exemption does not apply.

74. Condition 22 is in a form that requires, firstly, onsite detention (OSD) of water via an OSD tank or, alternatively, for rainwater tanks to be used in lieu or in conjunction with OSD tanks.

75. The Applicant submits that the first part of the condition is effectively satisfied by the charged roof water system and controlled discharge into the street, and that in respect of the second part of the condition, Section 4.4 of the Applicant’s Stormwater Management Report states that rainwater tanks are not a practical option as the levels on the site would see roof water overflow from the rainwater tank before discharging to the kerb and gutter.

76. The Respondent has been flexible in the application of the Stormwater Policy in two respects. Firstly, it has accepted a pump-out system despite Section 1.5.5 of the Stormwater Policy stating that ”Council will not under any circumstances approve the use of pump systems for disposal of surface stormwater”, and secondly, it accepts the disruption that would arise from the require of Section 1.5.6 of the Stormwater Policy, that easements be secured to downstream properties.

77. On the basis of the calculations set out on p6 of Exhibit T, I acknowledge the Applicant has taken steps to regulate the rate of discharge from the site. However, I do not consider stormwater discharge to the gutter to be akin to discharging directly into a Council pipe or pit.

78. A piped discharge as proposed by the Respondent in Condition 21 avoids adding further to the volume of stormwater running in a steeply sloping street, and for which a cumulative assessment has not been undertaken. In my view, this appropriately manages the likely environmental impacts of the proposed development when considered in the context of the requirement for the Applicant to otherwise secure an easement, that would be piped, through downstream properties.

79. Furthermore, as the Applicant records the increase in an impervious area on the site to be 18% and well in excess of the Respondent’s threshold of 5%, and the controls in Section 5.13 of the MDCP are clear and express in respect of the requirement for OSD tanks, I see no reason to relieve the Applicant of the requirement in Condition 22.

Waste

80. In essence, the dispute between the parties in respect of waste is limited in its scope as to whether or not the proposed development should provide eight bins for waste, or be capable of accommodating eight bins for waste.

81. The Applicant argues that there may be times when fewer than eight bins are required and it is unreasonable for the Applicant to be required to accommodate more bins than need requires.

82. While I do not consider there to be a great deal of difference between the parties, I note the Applicant’s qualified acceptance in oral submissions of the condition as it appears in Exhibit 6 and prefer the condition as drafted by the Council.

Acoustic treatment

83. Resident objections to the application draw attention to the likelihood of visual and acoustic impacts on surrounding residents. Visual and acoustic privacy is a particular concern of the owners of No 25 Pindari Avenue.

84. Attachment A in the Plan of Management sets out certain behaviours that are to be expected of residents in the group home, including ‘unmet needs’ that are described as including, but are not limited to, ‘aggression, agitation, intrusive behaviour, high levels of anxiety, exit seeking’.

85. The concern expressed by a number of residents is that the cognitive impairment of occupants of the group home will result in these ‘unmet needs’ being acted out in a manner that visibly and audibly impacts on neighbours.

86. I note the agreement of the experts that provision of a 1.8m high visual and acoustic barrier to the main deck adjoining No 25 Pindari Avenue, and a change to the glazing forming the balustrade to the minor deck resolves the overlooking and noise impact from No 23 Pindari Avenue.

87. The specification of the acoustic barrier to the main deck is set out in Annexure D of the joint planning report (Exhibit 4) in the following terms:

“Suitable material for the imperforate construction would include such constructions as lapped and capped timber fencing, 9mm fibre cement, 18mm marine plywood, masonry or minimum 6mm glass. The acoustic screen is to be installed so that it seals airtight with the existing structure.”

88. The effect of the acoustic barrier specification is expected to be a reduction of 12-15 dB(A) when measured at No 25 Pindari Avenue.

89. The acoustic barrier to the main deck is the subject of Conditions 27 and 28, and includes the requirement for full details of the screen to be provided for the approval of Council prior to the issue of the Construction Certificate.

90. Conditions 78 and 79 require written verification from a suitably qualified acoustic consultant as to compliance with the acoustic report.

91. The change in glazing to the minor deck is the subject of Condition 29. I note that both the drawings and Condition 29 are silent on the height of the glazing to the minor deck. A note on the drawings states that the existing glazed balustrade is to be removed and disposed of.

92. For the removal of doubt, and after considering the submissions of the owners of No 25 Pindari Avenue, I consider it reasonable that the height of glazing to the minor deck should be set at 1600mm above the finished level of the minor deck. In arriving at this conclusion, I adopt the long standing view of the Court that landscape planting should not be relied on to safeguard the privacy of neighbours. I also consider it possible or likely that an occupant using the minor deck would seek to stand at the edge of the deck and so gain a sightline over the glazed balustrade as proposed.

93. However, as the purpose of the glazed barrier is to mitigate visual, and not acoustic impacts, I note a height of 1600mm is common for privacy.

94. On this basis, I am satisfied that the visual and acoustic privacy of neighbouring properties, and No 25 Pindari Avenue in particular, will not be adversely affected.

95. I also accept the joint position of the parties that Condition 85 may be deleted.

Public submissions

96. Group homes are a type of development permitted by the operation of Division 7 of the SEPP ARH, and by reference to those uses permitted by consent in an R2 zone according to the MLEP.

97. Residents have expressed considerable concern at the likely impact of the group home proposed on the subject site. In broad terms, the likely impacts relate to servicing a 24-hour facility in a quiet residential area, and from the cognitive impairment that is a feature of dementia.

98. The Plan of Management sets out requirements for visiting hours, deliveries and the like. The Court has determined that these visiting hours should be reflected in conditions of consent.

99. I accept the Traffic Survey in Exhibit F indicates sufficient on street car parking is available for staff who may elect to drive, and that as the shift change is likely to occur around 7am each day, I consider the disruption of staff movements to be within reasonable daytime hours.

100. The effect of Condition 94, in combination with the commitment of the Applicant in the Plan of Management, should be to alleviate obstacles to the use of the driveway by No 25 Pindari Avenue.

101. In other words, while No 23 Pindari Avenue has a right of way that permits use of a portion of the driveway, the provision of an elevated parking structure and the new solid fence preventing access from the driveway to No 23 Pindari Avenue should substantially reserve the use of the driveway for the residents and guests of No 25 Pindari Avenue.

Directions

102. For the reasons set out above, I am satisfied that the grant of consent is warranted for the proposed development. However, the parties are now required to settle conditions of consent based on my determination of the conditions in dispute.

103. The parties are directed to agree and file an agreed form of conditions within 28 days of these preliminary directions.

Addendum 11 February 2021

104. In accordance with my directions at [102]-[103], the Court was provided with finalised draft conditions of consent on 24 December 2020.

105. On 13 January 2021, the Court received further online communication from the parties to the effect that the conditions of consent previously agreed to by the parties had inadvertently omitted modification of condition 18.

106. By consent, the parties seek the Court to amend condition 18 to read as follows:

“Design for Access and Mobility

18 The disabled car parking space must comply with AS2890.6. Details must be provided with the Construction Certificate demonstrating full compliance with this Australian Standard. A permanent, non-collapsible bollard must be installed within the shared zone in accordance with the positioning requirements outlined in AS2890.6:2009, so as to prevent any vehicles parking in this zone. The bollard must be clearly shown on the Construction Certificate plans.”

107. So amended, I am satisfied that the final draft conditions of consent address those matters required by my directions, and I am therefore satisfied that consent to the development application should be granted subject to conditions of consent, pursuant to s 4.16(1)(a) of the EPA Act.

Orders

108. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 8.2019.30.1 for alterations and additions to an existing dwelling house and change of use to a group home at 23 Pindari Avenue, Mosman, subject to conditions of consent at Annexure ‘A’.

3. All exhibits are returned, except for Exhibits C, D, E, F, G, J, K, L and M.

……………………

T Horton

Commissioner of the Court

Annexure A (274448, pdf)

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Amendments

11 February 2021 - See addendum for final orders at [104] to [108].

Decision last updated: 11 February 2021