Incoll Management Pty Ltd v Kogarah Municipal Council

[2004] NSWLEC 100

Land and Environment Court

of New South Wales

CITATION:	Incoll Management Pty Ltd v Kogarah Municipal Council [2004] NSWLEC 100
PARTIES:	Kogarah Municipal Council
FILE NUMBER(S):	10964 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Aged care facility bulk and scale residential amenity traffic and parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No5 Kogarah Local Environmental Plan 1998
CASES CITED:
DATES OF HEARING:	25 and 26 November 2003
DATE OF JUDGMENT:	03/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Walker SC Mr G Newport, Barrister SOLICITORS Bowen & Gerathy RESPONDENT Mr C Leggat SOLICITORS Abbott Tout

JUDGMENT:

10964 of 2003

Tuor C

19 March 2004

INCOLL MANAGEMENT PTY LTD

Applicant
v

KOGARAH MUNICIPAL COUNCIL

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Kogarah Municipal Council (the council) of a development application for alterations and additions to an existing aged care facility at No 16 – 24 Cheddar Street, Blakehurst.

The site and its context

2 The site (being lots 11, 12, 13 and 15 DP 7575 and lots A and B DP377799) is located on the southern side of Cheddar Street, about 80m east from its intersection with King Georges Road. It has an area of 5996m2 with a frontage of about 76m to Cheddar Street and a variable depth of about 78m.

3 The western part of the site (No 20 – 24 Cheddar Street) has a frontage to Cheddar Street of about 46m. Most of this frontage is occupied by an open car park for 14 cars. Behind this is a two-storey hostel set back about 21metres from Cheddar Street and the single storey entrance and reception to the aged care facility. This is set back five metres from Cheddar Street and occupies about 13m of the street frontage. The ground floor level of the existing buildings (RL29.46m) ranges from about 1.5m to 3m above street level. The existing buildings are built around a central courtyard and they occupy most of its site. The site was extensively excavated to accommodate this facility with a strip of land retained as open space at the rear of the site at its original ground level of about RL34.5m.

4 The rest of the site (No 16 – 18 Cheddar Street) is developed with single storey detached houses on two separate allotments. Each of these allotments has a frontage of 15.24m to Cheddar Street and the houses are set back about six metres from Cheddar Street. These allotments fall about 11m from the south to north with significant rock ledges.

5 Adjoining development to the east is a single storey house and to the west is a large two storey house. Surrounding development in Cheddar Street is characterised by detached houses on large allotments. The houses are predominantly single storey with some recent two storey houses, of a variety of heights and styles. The properties to the rear of the site that front Faye Avenue because of the slope of the land are situated at higher level and look over the site.

Background

6 A development application was lodged in January 2003. The application was advertised and council received 19 objections and three petitions with 46 signatures. Amended plans were lodged in April 2003. These were readvertised and 10 objections were received. Two public meetings were held. The main issues of concern related to: the size and bulk of the proposal being out of character with the residential street; the impact of parking and traffic; increased noise; the extent of excavation; removal of trees; and the impact on privacy of adjoining neighbours. Council staff recommended approval of the application on two occasions. Council refused the application on 23 September 2003. As a result of the expert’s joint conference, further amendments were made and these plans became the subject of the appeal. Council agreed that these amended plans did not need to be readvertised.

The Proposal

7 The proposal is to demolish the existing dwellings at 16 and 18 Cheddar St. and to construct a part three-storey addition to the existing aged care facility. The addition will provide 43 beds, bringing the total to 83 beds. An additional 34 car spaces will be provided in the new ground level car park, bringing the total car parking to 48 spaces.

8 The proposal will have a floor space ratio of 0.744:1. I note this figure does not appear to include the area provided for car parking in excess of council's requirements. The maximum height of the development will be eight metres to the underside of the ceiling and 10.4 m to ridge height.

Statutory framework

9 The site is zoned Residential 2 (a) – Residential (Low Density) under Kogarah Local Environmental Plan 1998 (LEP 1998). “Housing for the aged and disabled” and “nursing homes” are permissible with consent.

10 Clause 7(2) requires that:

Except as otherwise provided by this plan, the Council shall not grant consent to the carrying on of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

11 The relevant objectives of the 2(a) are:

(b) to maintain the amenity and low density environment of areas predominantly characterised by detached low density houses, and
(c) to allow certain non residential development of low intensity which is compatible with the residential character and amenity of the locality.

12 Council was exempted from the provisions of State Environmental Planning Policy No 5 - Housing for older people or people with a disability (SEPP5). There are no numerical standards in LEP 1998 that specifically apply to aged care facilities. LEP 1998 includes provisions that apply to all types of development, relevantly cl 8 relates to removal of trees and cl 9 requires that the impact of excavation be considered.

13 Development Control Plan No 8 – Off Street Car Parking Code (the code) is also relevant. This specifies the minimum number of car parking spaces required by the development. Under this document 17 spaces are required for the whole aged care facility, including the addition.

14 The parties did not agree on whether Kogarah Residential Development Control Plan (RDCP) applied to the site. Mr Walker, for the applicant, submits that the DCP was not relevant as it applied only to residential development. Mr Leggat, for the Council, submits that in the absence of other planning controls it was an appropriate guide for development of the site and indicative of council’s desired future character for the area.

15 I accept that neither the RDCP nor SEPP No5 apply in terms to the development. The application must therefore be considered on its merits and assessed against how it meets the objectives of the LEP 1998. Nonetheless, the town planning experts for both council and the applicant assessed the application against these documents as a guide to their merit consideration.

Issues

16 The Statement of Issues before the Court contains 10 issues. The key issues are:

i. whether the bulk and scale of the development is consistent with the low density residential environment of the street.

ii. whether the proposal will have an acceptable impact on residential amenity.

17 The following experts gave evidence:

· For the council

Mr M. Ball, town planner

· For the applicant

Mr C. King, town planner
Mr R Harmston, architect for the proposal

18 Statements of Evidence from the following experts were tendered by the applicant but these experts were not required for cross-examination:

· Mr J. Cody, traffic engineer

· Ms J. Ramsay, landscape architect

· Mr P. Karantonis, acoustic consultant

· Mr B Lambert, aged care industry consultant

19 The Court also heard evidence from the following residents:

Ms P. Rozenberg, 13 Cheddar St., Blakehurst
Mrs I. Smith, 17 Cheddar St., Blakehurst
Mr V. Waight, 15 Cheddar St., Blakehurst

Ms B Trussell, 14 Cheddar St., Blakehurst (on behalf of Mr T Noonan)

20 These residents had reviewed the amended plans but did not consider that the changes sufficiently addressed their concerns. In particular, they said that the height and length of the building still resulted in a development that was out of scale with the residential character of their street and that the increase in traffic would exacerbate an existing problem. Ms Trussell raised concerns about the impact of the proposal on the amenity of her property.

Bulk and scale

21 In his statement evidence, Mr Ball concluded that:

1. The proposal is not consistent with several of the objectives of the Residential 2(a) zone in the LEP and therefore breaches clause 7(2).
2. The proposal would have a height, bulk and scale far greater than can be expected under Council's controls in this neighbourhood.
3. The impact of the proposal on the adjoining property (No 14 Cheddar St) is severe and contrary to reasonable expectations under Council's planning controls. These impacts include height, bulk, scale, appearance and privacy concerns. Of these, privacy impacts can be overcome by minor amendments to the proposal.
4. The proposal provides for many more parking spaces that is required by the extension of the existing facility. While there may be good operational reasons such over provision, the direct effect is a significant and unacceptable increase in the height, bulk, scale and institutional character of the proposal.
5. Operational noise arising from the proposal is probably acceptable subject to details and appropriate conditions of consent.
6. In my opinion, the proposal is not responsive to the relevant planning controls or reasonable expectations for development in this neighbourhood, and does not merit approval.

22 As a result of the joint conference between the experts, Mr Ball agreed that his concerns would be overcome by amendments to the proposal that, with the exception of a reduction in the width of the roller door, the applicant incorporated into the plans before the court.

23 Mr Ball’s concerns in relation to the impact on 14 Cheddar Street were addressed by increasing the setback from the eastern boundary of the upper level of the building and the introduction of planter boxes along the eastern terrace.

24 In relation to streetscape impact, Mr Ball's concerns were addressed by the further setback, the removal of two car parking spaces in the north east corner of the building, the removal of the existing garbage structure and planter box along the Cheddar Street frontage and landscaping.

25 The only outstanding concern of Mr Ball was the reduction in the width of the roller shutter door to the garage from 6 m to 3.5 m. The applicant did not agree to this change. Mr Ball considered the 6m garage door to be uncharacteristic of the area and that this accentuated the bulk of the car park. In his opinion, this change was “part of a suite of changes which all needed to be made”. If this change was not included the application should fail as its bulk, despite all the other changes, would remain unacceptable.

26 I find this proposition difficult to accept. I also do not understand how Mr Ball's opinion that the proposal was unacceptable would change to an opinion that it was acceptable as a result of the changes that were agreed to. I accept that these changes reduce the bulk of the proposal on 14 Cheddar St and mitigate privacy impacts to an acceptable level. I also accept that the changes to the north east corner of the building reduce the bulk from this part of the street. However, I do not consider this change, together with the landscaping and removal of minor structures, sufficient to change what Mr Ball considered to be an unacceptable streetscape impact to an acceptable one.

27 The bulk of the building is largely a result of its length, setback from the street and three-storey height. The height is a result of the ground level car parking, which exceeds council’s requirements and adds considerably to the bulk of the building. The provision of smaller roller door to the car park would do nothing to alter the overall bulk of the building or reduce the impact of this car park level. It is definitely not a change upon which the application should succeed or fail. Further, I accept that the width of the garage door is appropriate to the scale of the building and I have therefore deleted the council’s proposed condition 6A and accepted the applicant’s wording that details of the 6m door be provided.

28 In Mr King’s opinion, the proposal has an acceptable streetscape impact. The building would not appear as three storeys from the street because of the setback and landscaping proposed. The length of the development along the Cheddar St was articulated and broken up by the variety of setbacks and roof forms to achieve a domestic scale. In his opinion the development met objective (b) of the zone and maintained the low density environment predominantly characterised by detached dwelling houses. Even though the majority of existing houses were single storey, he said the street was in transition. Two-storey houses, similar to the one recently built at 26 Cheddar Street, reflected what was permissible under the planning controls and therefore the low density environment of the area. In his opinion, the existing aged care facility was also part of the existing environment of the street and the proposal was an appropriate addition to this nursing home and to the street.

29 In Mr King’s opinion, objective (c) of the zone did not apply as it referred to non-residential development and he considered the proposed aged care facility to be residential in nature. Although, he stated that the RDCP was not relevant as it applied to certain residential development. Mr Ball considered that objective (c) applied as the proposal is institutional in nature. I find that this objective is relevant and that under cl 7(2) I am required to consider whether the proposal is consistent with objectives (b) and (c). Both objectives require a similar consideration, namely whether the amenity and low density environment is maintained and the compatibility of the development with the residential character and amenity of the area.

30 The residents did not agree with the experts’ opinion. Their main concern was that the existing environment of the street was predominantly single storey houses and that the size of the development, both its length and height, was not low density and did not respond to this character. While they accepted the existing operation of the aged care facility their understanding of the residential zone was that a development of the size proposed would not be appropriate. The residents also did not consider the aged care facility to be residential, but commercial in nature because of its size and the traffic generated.

31 I understand the concerns of the residents about the expansion of the aged care facility. The expert evidence before me is that it is acceptable and meets the objectives of the zone. In the absence of any development standards that apply to the site, the application must be considered on its merits and assessed on whether it is consistent with the character of a low density residential environment and maintains appropriate amenity. I acknowledge the bulk and scale of the building is not of a domestic scale, and that the ground level car park contributes to this bulk and is a negative feature of the proposal. However, I accept Mr King’s evidence that the variety of setbacks and roof forms, particularly the setback of the three storey component, the landscaping and the articulation of the façade assist in breaking down the bulk and scale of the development to the extent that it is, while different to the single dwellings in the street, not so different to be antipathetic. I also accept that the development maintains the amenity of its residential neighbours, particularly the house most likely to be affected, 14 Cheddar Street. I therefore find that the proposal is consistent with the objectives of the zone.

Traffic

32 The other concern of the residents was that the traffic generated by the increase in staff, patients and visitors would exacerbate the existing traffic and parking problems in their street. The use of the street as a shortcut, illegal left-hand turns into King Georges Road and the parking related to the school, largely caused this problem. Although raised in the Statement on Issues, Council did not provide any expert evidence on this issue. The planning report and the Statement on Evidence of Mr Coady, on behalf of the applicant, concluded that the increase in traffic generated by the proposal was relatively low and unlikely to have a significant impact on surrounding traffic flows and the current level of service. The additional car parking spaces provided by the development, which exceeds council’s code, would remove the demand for on street parking and therefore reduce any existing competition for parking. In the absence of any conflicting evidence, I accept these conclusions.

Impact on residential amenity

33 As discussed above, I accept that the amendments to the proposal mitigate the impacts on 14 Cheddar Street to an acceptable level. Other impacts on adjoining properties such as noise, light from cars and impact of excavation have been addressed by conditions.

Conditions

34 The only conditions in dispute were conditions 6A and 7. Condition 6A relates to the garage door and for the reasons discussed above I have accepted the applicant’s wording. Condition 7 requires the construction of two raised thresholds in the street as traffic calming devices. I accept the applicant’s submission that on the evidence of Mr Coady the increased traffic generated by this development is relatively low. This evidence was not challenged. It therefore follows that the demand for the thresholds by this development alone is not justified and I have deleted the condition.

Orders

1. The appeal is upheld.

2. Development Application No 2003/17 for alterations and additions to an existing aged care facility at 16 – 24 Cheddar Street, Blakehurst, in accordance with the following plans is determined by the grant of development consent subject to the conditions at annexure “A”:

Morrison Design Partnership:
DA 00A Locality plan
DA 01A Revision E Site plan
DA 02A Rev E Basement floor plan
DA 03A Rev D Ground floor plan
DA 04A Rev D First floor plan DA
DA 05A Rev E Roof plan
DA 06A Rev D Basement floor plan
DA 07A Rev D Part Ground floor
DA 08A Rev D Part Ground floor
DA 09A Rev C First floor plan
DA 10A First floor plan
DA 11A Rev E Elevations
DA 12A Rev B Elevations
DA 12B Rev E Elevations
DA 13A Rev E Elevations
DA 14A Rev C Elevations
DA 15A Rev B Elevations
DA 16A Rev C Shadows
DA 17A Rev C Shadows.

Jocelyn Ramsay & Associates:
Drawing No. 0286, Revision C, dated 13/11/03

3. The exhibits, except exhibit A and 9, may be returned.



____________________
Annelise Tuor
Commissioner of the Court