Jenny-Lynn Properties Pty Ltd v Rockdale City Council

[2010] NSWLEC 1014

Land and Environment Court

of New South Wales

CITATION:

Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014

PARTIES:

APPLICANT
Jenny-Lynn Properties Pty Ltd

RESPONDENT
Rockdale City Council

FILE NUMBER(S):

10277 of 2009

CORAM:

Bly C

KEY ISSUES:

DEVELOPMENT APPLICATION :- residential care facility, alterations and additions, amenity impacts on neighbouring properties, appearance, bulk and scale; visual and acoustic privacy; overshadowing, car parking, internal amenity, open space, indoor living areas, staff facilities, character and streetscape.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Rockdale Local Environmental Plan 2000
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Development Control Plan No 40 - Housing for Older People and People with a Disability

DATES OF HEARING:

2-3 December 2009

 
DATE OF JUDGMENT: 

22 January 2010

LEGAL REPRESENTATIVES:

APPLICANT
Miss F Berglund (barrister)
SOLICITOR
Ryan Lawyers

RESPONDENT
Mr J Cole (solicitor)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

22 January 2010

10277 of 2009 Jenny-Lynn Properties Pty Ltd v Rockdale City Council

JUDGMENT

Introduction

1 This appeal relates to the refusal by the Rockdale City Council a development application (2008/242) for alterations and additions to the existing Jenny Lyn Nursing Home at 13 Henson Street and 4 Reading Road, Brighton le Sands.

2 Taking into account the submissions made on behalf of the parties, the expert and resident evidence and having inspected the site and its environs for the reasons given in this judgment, I have decided that the appeal should be dismissed and the development application refused.

The site and the proposal

3 The nursing home or residential care facility has operated on its present site in Henson Street for the past 25 years. It is presently contained within an existing two-storey building and provides 38 beds with associated facilities. There is parking for three cars in the front setback area plus an ambulance bay. It is now proposed to demolish and reconstruct a significant proportion of the existing building.

4 In addition the existing dwelling house on the adjoining site at 4 Reading Road is to be demolished and the site utilised for the construction of a two-storey plus basement as an addition/extension to the existing nursing home. This will increase the number of beds by 17 to a total of 55. The basement will have access off Reading Road and will provide an additional four car parking spaces plus a plant room, staff amenities and kitchen. The three levels of the extended building will be connected with a lift.

5 The combined "L" shaped site, comprising 13 Henson Street and 4 Reading Road (Lot 1 DP 525322 and Lot 2 DP 317355) has a total area of 1,130 sq m. It has a splayed frontage to Henson Street of 23.6 m and a width of 16.4 m at the building line and a frontage/width to Reading Road of 10.97 m. The site is relatively level. There are four trees on the site that are to be removed. The surrounding locality is developed with detached, mainly single-storey and some two-storey dwelling houses and several single-storey villas.

Rockdale Local Environmental Plan 2000

6 Under the Rockdale Local Environmental Plan 2000 The Henson Street property is zoned 2(a) Low Density Residential and the Reading Road property is zoned 2(b) Villa/Townhouse Residential and in these (low-density) zones the proposal, falling within the definition of housing for older people or people with a disability, is permissible with development consent. Residential flat buildings are prohibited in these zones.

7 Clause 12 (3) of the LEP provides that consent must not be granted unless the development would be consistent with one or more objectives of the zone. The objectives of these residential zones seek, inter alia, to protect the character and amenity of the area.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

8 Also applicable is State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. The Seniors SEPP aims to encourage the provision of housing that will: increase the supply and diversity of residences that meet the needs of seniors or people with a disability; make efficient use of existing infrastructure and services; and of particular relevance to this proposal, "be of good design".

9 Clause 4 provides that the Policy applies to land that is zoned primarily for urban purposes and because the above-mentioned residential zones are zones that facilitate urban development in the form of, inter alia dwelling houses, its provisions are therefore relevant. Clause 5 provides that should there be an inconsistency with the Policy and any other environmental planning instrument the Policy prevails. Clause 10 identifies seniors housing as residential accommodation that is or is intended to be used permanently for seniors or people with a disability consisting of, inter alia, a residential care facility (as is here proposed).

10 Clause 11 of the Policy contains specific requirements for a residential care facility including meals and cleaning services, personal care or nursing care, appropriate staffing, furniture and furnishings and equipment. These matters are not in dispute. Clause 32 provides that consent must not be granted to a development application unless the proposed development demonstrates that adequate regard has been given to the Design Principles in Division 2 of the Policy. Relevantly here are the issues of: neighbourhood amenity and streetscape (cl 33); visual and acoustic privacy (cl 34); and solar access and design for climate (cl 35).

11 Also relevant are cll 38, 40 and 48 of the Policy. Clause 38 requires that the development should, inter alia, provide convenient access and parking for residents and visitors. Clause 40 contains a number of relevantly applicable development standards: "the size of the site must be at least 1,000 sq m"; "the site frontage must be at least 20 m wide measured at the building line"; in residential zones (where residential flat buildings are not permitted) "the height of all buildings must be 8 m or less" and "... must not be no more than two storeys in height"; and "a building located in the rear 25% area of the site must not exceed one storey in height". Because both frontages of the site are said not to meet the 20 m minimum site width and the one storey height limit for the rear 25% of the Henson Street lot is exceeded the applicant has provided written objections pursuant to State Environmental Planning Policy No 1 - Development Standards.

12 Clause 48 of the Policy contains standards for a residential care facility that, if complied with cannot be used to refuse development consent. These include: a building height of 8 m or less; a floor space ratio of 1:1 or less; a minimum of 25 square metres of landscaped area per residential bed; and one car parking space for each 10 beds plus one car parking space for each 2 persons to be employed and on duty at any one time plus one parking space for an ambulance.

Development Control Plan No 40 - Housing for Older People and People with a Disability

13 Also applicable is council's Development Control Plan No 40 - Housing for Older People and People with a Disability. The DCP contains a number of relevantly applicable standards including site density, height, setbacks, landscaping and recreation areas.

14 The DCP requires that for nursing homes the bed density should not exceed one bed per 80 sq m of site area. This would indicate a maximum of 14 beds for this site by comparison with the 55 proposed beds. Also, buildings are to be set back 7.5 m from their frontage and 3 m from side and rear boundaries. In low density residential zones buildings should be designed to resemble single dwellings and long lines of walls should be broken up using variable setbacks to avoid a monolithic appearance.

15 The application was advertised and 14 submissions objecting to the proposal were received. These objections raise matters of concern essentially as follows:

• The proposal would not comply with the variously applicable planning controls.
• The proposed 3-storey building would be too high and inappropriate in this locality.
• Adverse impact on the locality in terms of increased traffic and on-street car parking demand. Street conditions are presently unsafe. There is insufficient on-site visitor parking and no on-site parking for disabled/elderly visitors.
• The proposed garbage storage facilities in appropriately located and visually unacceptable.
• The noise from plant and equipment would adversely affect residential amenity.
• There is insufficient shadow information. Overshadowing of neighbouring residential properties in winter.
• The development would overlook neighbouring residential properties.
• There would be an increase in neighbourhood disturbance from delivery vehicles resulting from the intensification of the use.
• The proposed development would have an excessive bulk and scale, be out of character and would comprise an overdevelopment of the (extended) site.

16 When the hearing began on site I heard from a number of neighbouring residents (or their representatives) who explained these concerns in some detail.

17 The council (under delegated authority) refused the development application on 7 May 2008, for reasons essentially as follows:

• Inconsistencies with various requirements of the Seniors SEPP.
• Inadequate SEPP 1 objections.
• Failure to satisfy applicable zone objectives.
• The unsuitability of the site and overdevelopment.
• Amenity impacts on surrounding development.
• Excessive height, bulk and scale.
• Resident objections.

Expert evidence

18 Expert oral and written town planning evidence was provided by Miss F. Heretis on behalf of the council and by Mr S. Hills on behalf of the applicant. Expert written and oral traffic engineering evidence was provided by Mr J. Milner on behalf of the council and by Mr C. McLaren on behalf of the applicant.

19 According to the amended Statement of Facts and Contentions (21 October 2009), the council says that the development application should not be approved for nine particularised reasons that extend over almost 8 pages and which fall under the following headings:

• Non-compliance with Seniors Living SEPP.
• Non-compliance with Rockdale LEP zone objectives.
• Insufficient information.
• Extent/streetscape/overdevelopment.
• Amenity of development for occupants.
• The residential amenity of surrounding properties.
• Traffic/car parking.
• Site suitability.
• Matters raised by objectors.

20 In his opening address Mr Cole, for the respondent council, explained that the proposed development represents an overdevelopment of this site that has a difficult shape and is too small for the proposal. He explained that this conclusion results from the following concerns.

• The proposal would have adverse amenity impacts on eight neighbouring properties in terms of: appearance, bulk and scale; visual and acoustic privacy; overshadowing; and the location of garbage bins.
• The provision of car parking on site in terms of numbers and internal design is unsatisfactory resulting in an increased demand for on street parking.
• The internal amenity of the proposal will be unsatisfactory in terms of: outdoor open space at ground level; indoor living areas; and the provision of staff facilities in the basement.
• In the context of character and streetscape that proposal will have an unsatisfactory presentation taking into account the driveways and the proposed landscaping.
• The proposal does not comply with a number of applicable development standards under the Seniors SEPP and the SEPP 1 objections are not persuasive. Also various DCP requirements are not complied with.

21 He also submitted that to the extent that the residents concerns overlap with these matters they should also be taken into consideration.

22 Miss Berglund submitted on behalf of the applicant that nursing homes are an important part of our society and that the development application should be considered in its context including the fact that the nursing home has been in existence since 1945, prior to the arrival of many of the existing residents. Also, to be taken into account is the fact that the residents of the nursing home are also residents of this locality.

23 The proposal will improve the quality of the nursing home for its residents and it can be accepted that it will meet all of the relevantly applicable Commonwealth requirements. As regards streetscape the design is sensitive to existing development and will fit in, notwithstanding that, to a degree, it looks different.

24 She also acknowledged non-compliances with some standards but submitted that these were justified in the circumstances. Attempts have been made to mitigate impacts on neighbours and where necessary conditions could be imposed. As for concerns in relation to garbage storage plant noise and the like these could be addressed by the imposition of conditions of consent.

Visual and acoustic privacy

25 Clause 34(a) of the Seniors SEPP requires consideration of the visual and acoustic privacy of neighbours in the vicinity of the proposed development in terms of site planning, windows and their location and balconies together with the use of screening devices and landscaping. The objectives of the 2(a) and 2(b) zones are concerned to ensure that the amenity of the locality is protected. Similarly the DCP seeks to ensure that neighbour amenity is not adversely affected.

26 According to Miss Heretis the Reading Road extension with a ground floor level 1.18 m above ground level will provide overlooking opportunities from ward and corridor windows into the neighbouring/adjoining private open space of the dwelling houses at 2 and 6 Reading Road. Also the first floor balcony off the lounge/dining area will overlook the rear yard of 2 Reading Road and the external staircase/landing will provide overlooking opportunities into the adjoining dwelling at 15 Henson Street. In response Mr Hill explained that the maintenance of the existing Henson Street ground floor level into the new building allows convenient and safe access for residents and that the additional height does not create inappropriate additional visual impacts. In relation to privacy impacts, window screens can be utilised.

27 An examination of the architectural drawings reveals that there is one north facing corridor window opposite Ward 9/10 that would afford overlooking into the rear yard at 6 Reading Road. By scale; the eye level of a person (1.5 m above floor level) standing at this window would be about 2.5 m above ground level. Hence, such a person would be easily able to look over a 1.8 m high fence into that neighbouring property. In this location the building is set back 905 mm (the DCP requires a 3 m setback) from the common boundary and I accept that within this narrow space the provision of screening landscaping would be difficult and a screen on top of the fence to an effective height of 2.5 m would be inappropriate. In these circumstances I prefer the reasoning of Miss Heretis and agreeing that the overlooking impacts unreasonable.

28 The architectural drawings also show that there are two south facing windows in Wards 7/8 and 9/10 and in my opinion the maintenance of an outlook from ward windows is desirable. However these windows facilitate overlooking into the rear yard at 2 Reading Road. By scale the eye level of a person (1.5 m above floor level) standing at these windows would be about 2.4 m above ground level. Hence such a person would be easily able to look over a 1.8 m high fence into that neighbouring property. In this location the proposed building is, as required, set back 3 m from the common boundary. As with the north facing corridor window a screen on top of the fence to an effective height of 2.4 m would be an inappropriate means of resolving this concern. However the 3 m complying setback together with appropriate landscaping would, I expect, be sufficient to mitigate this overlooking concern. Again, screening the windows would adversely affect internal amenity and would be undesirable.

29 It is possible that the rear yard at 2 Reading Rd will be overlooked from the first floor balcony of the Henson Street building. However, taking into account the relatively narrow width of this balcony that limits the intensity of its use, the average separation distance and the intervening landscaping I do not accept this as being a matter of concern.

30 Miss Heretis was also of the opinion that the proposed first floor windows in Wards 42/43 and 44/45 in the two-storey extension to the rear of the existing Henson street building would result in overlooking of the rear private open space of at least one of the neighbouring villas in Archbald Street. An existing tree that would otherwise provide privacy is to be removed. Mr Hill disagreed explaining that the overlooking would be minimal and that appropriate screening landscaping with the complying 3.5 m setback area could assist in compensating for the loss of the tree. Alternatively the windows could be provided with privacy screens.

31 As I have already indicated the maintenance of an outlook from ward windows is desirable and the use of privacy screens is undesirable if outlook is unreasonably affected. However as Wards 42/43 and 44/45 (at first floor level) are to be set back almost 5 m from the southern boundary and because this area can be landscaped I do not consider this aspect of the proposal to be, by itself, determinative. Despite this, a different design that would enable the retention of the existing tree would have been of benefit here.

32 Also of concern to Miss Heretis is the proposed first floor terrace that extends between the Henson street building and the first floor level of the Reading Road building. This terrace would provide opportunities for overlooking of the private open space of the dwelling houses at 2 and 6 Reading Road. It would also affect the aural privacy of those properties. Mr Hills did not accept that this would be a concern because the terraces to be fitted with privacy screens that will prevent overlooking. Also the existing clients are not considered to be noisy and the terrace will not be used on a 24 hours per day basis and will only be used on an occasional basis. Its use can be managed and is not likely to be a noisy, being essentially residential in character.

33 According to the architectural drawings the terrace measures about 4 m by 12 m and is set back 4.2 m from the southern boundary and 2.105 m from the northern boundary. It is to be provided with several tables and chairs that could accommodate 16 people. It will also be used as a pedestrian link between Wards 29/30, 31/32 and 33/34 and the lounge/dining room and other facilities in the Henson street building. Whilst I accept that opportunities for overlooking will be constrained there could still be some, occasional impacts on the aural privacy or peacefulness of the two adjoining rear yards despite the screens and the setbacks. Also the enclosing privacy screens will limit outlook from the terrace. Despite this I prefer the evidence of Mr Hills and do not consider this aspect of the proposal to be determinative.

Overshadowing and daylight access

34 Clause 35(a) of the Seniors SEPP requires that proposed development should ensure that there is adequate daylight to the main living areas of neighbours in the vicinity and adequate sunlight to substantial areas of private open space. The LEP and the DCP seek the maintenance of reasonable residential amenity and in particular the DCP requires three hours of sunlight to neighbouring properties. The proposed Reading Road building will, at the Winter solstice, variously overshadow the property at 2 Reading Road to the south. The existing Henson Street building presently variously overshadows the properties that 2 -8 Reading Road.

35 The two-storey element of the Reading Road building coincides with the length of the existing single storey dwelling house at 2 Reading Road and part of the wall of this element is only setback 1 m from the boundary contrary to the 3 m DCP setback requirement. However given the average separation between the two buildings of 3m and 5m I agree with Mr Hills that the north facing wall of the dwelling house will retain an adequate access to daylight (as distinct from solar access).

36 The north facing wall at 2 Reading Road will be variously overshadowed by the two-storey element of the proposed building that has, as described above by Miss Heretis, an elevated ground floor level making the building taller than it might otherwise have been. The shadow diagrams indicate the extent to which this wall, that contains a kitchen window, a lounge room window and a bathroom window will be overshadowed by comparison with the overshadowing generated by the existing house. At present these windows all receive, to varying degrees direct sunlight between 10 am and 2pm. All of this sunlight is lost between 10 am and 12 noon, some sunlight (about half) is lost at 1 pm and at 2pm the windows are largely unaffected.

37 It seems to me that, by comparison, a conventional two-storey dwelling house would have a similar impact although its impact would be less if it did not have an elevated ground floor level. Also if the proposed building work to comply with the 3 m setback requirement and did not have an elevated ground floor level the impacts would be reduced

38 As regards solar access at the rear of 2 Reading Road the shadow diagrams reveal significant increases in the overshadowing of the rear yard/private open space of that property between 9 am and 11 am. This rear yard is already significantly affected by the existing Henson street building from 1 pm onwards. Otherwise there is no additional overshadowing to this property. This overshadowing is generated by a building that is effectively in the rear yard of 4 Reading Road, a location where the neighbours would not normally anticipate a building. Whilst it is set back 3 m as required it nevertheless has an elevated ground floor level and this results in increased overshadowing. As with the impacts on the dwelling house the overshadowing of the rear yard would be lessened if the proposed building did not have an elevated ground floor level.

39 Being located to the north of the dwelling house at 6 Reading Road, the Reading Road building does not overshadow it. However the Henson Street building presently causes some overshadowing but the shadow diagrams show that this will be slightly improved by the modifications to it.

40 In relation to overshadowing impacts, a more carefully considered design would reduce the impacts on the property at 2 Reading Road to a more reasonable level.

Visual appearance

41 Clause 33(c) of the Seniors SEPP, inter alia, requires the maintenance of reasonable neighbourhood amenity and appropriate residential character taking into account matters such as building siting, form and bulk. Similarly the DCP requires that new buildings should contribute to the quality and identity of the area including streetscape, by having an appropriate residential character.

42 The issue of the visual appearance of the proposed development was of particular concern to the residents at 2 and 6 Reading Road because they believe that with the extension of the nursing home onto 4 Reading Road their rear outlook and rear yards would be dominated by the built form of the extended building. Miss Heretis agreed, explaining that the length and elevated ground floor level results in the Reading Road building being inconsistent with the length of established buildings in the vicinity of the site and having a visually overbearing built form. Mr Hills disagreed and did not accept that the amenity of 6 Reading Rd would be affected. Instead this property would benefit from additional built form modulation, changes in materials and landscaping.

43 Plainly the total built form of the proposal would be of greatest concern to 6 Reading Road whose backyard is and will continue to be dominated by the existing/modified two-storey Henson Street building to the west. In addition it will be affected by the single storey interconnected Reading Road building to the south. In this context it is to be noted that the Reading Road building is, as required by cl 40 of the Seniors SEPP, only single storey at the rear. Despite this Miss Heretis continues to be concerned at the elevated floor level that results in the whole structure here being higher than it would otherwise be. Whilst the single storey aspect assists, its elevated nature and the proposed continuous built form to the south and the west of the backyard together with the limited landscaping opportunities and taking into account the non-complying set back, I agree that the consequences for 6 Reading Road are unacceptable.

44 The first floor level of the altered/extended Henson Street building will extend by about 9 m into the 25% single storey area contrary to cl 40 (4) of the Seniors SEPP although of this 9 m, only about 3.6 m is actually an extension. In this context it it is relevant to note that the east side of the (existing) building in this location also fails to comply with the 3 m site setback requirement in the DCP. Miss Heretis agreed with the objectors that this extension would affect the visual amenity of their neighbouring properties at 8 and 8A Reading Road and the villa home to the north. Mr Hills disagreed explaining that the 3.6 m extension is considered minimal and allows a modulation/articulation of the building and that appropriate landscaping can assist. In this regard I find the reasoning of Miss Heretis to be persuasive and although this aspect may not have been by itself determinative, a more responsive approach to the applicable development standard and the DCP requirements is warranted.

Landscaping

45 The 25 square metres of landscaped area per residential bed threshold in cl 48 of the Seniors SEPP equates to the provision of 1,375 sq m of landscaping. By comparison, 504 sq m is to be provided. Application of the requirements of the DCP indicates a deficiency of 42 sq m overall and a 166 sq m soft landscaped area deficiency. The objectives of the landscaped area requirements are to ensure that the development is appropriately landscaped so as to soften its appearance and complement the streetscape and to provide adequate and usable private and communal open space with adequate solar access.

46 In this regard Miss Heretis was concerned that the minimal provision of ground level usable and functional landscaped areas that result from the provision of landscaping around the periphery of the building is where development cannot otherwise occur. Failure to comply with setback requirements contributes to its unsatisfactory nature. The landscaped areas at the rear of the Henson Street building that could be developed for the necessary communal open space would be difficult to access via the fire stair/egress on the west side. Also, as a result of the general deficiency in landscaping the adverse amenity impacts of the development on neighbours cannot be mitigated. In response Mr Hills said that the landscaped area is very much a response to the existing 1945 building. It is nevertheless sufficient to meet the needs of the nursing home and provide and an occasional area for walking and will provide visual relief for neighbours. The first floor terrace will also provide external open space.

47 I again find the reasoning of Miss Heretis persuasive and agree that the open space provision is dimensionally deficient, mainly comprising residual spaces around the building. Had more substantial areas of effective and usable landscaping been provided within the site some of the above-mentioned non-complying setbacks might have been acceptable. I also do not accept that the effectively enclosed roof terrace is, in this case, a sufficient alternative to the provision of accessible ground level landscaped open space as could have been provided at the northern end of the Henson Street site.

48 Finally, whilst the cl 48 landscaped area threshold in the Seniors SEPP is not a standard to be applied it nevertheless provides an indication of what the Policy deems to be acceptable and in my view suggests that very strong arguments must be provided if the far less onerous requirements of the DCP are not to be met. In my opinion such arguments have not been provided. These matters further contribute to the unacceptability of the proposal.

Internal amenity

49 Clause 34 of the Seniors SEPP requires consideration of the visual and acoustic privacy of the residents of the proposed development in terms of site planning, windows and their location and balconies together with the use of screening devices and landscaping. In this context Miss Heretis points out that both buildings do not meet the Seniors SEPP site frontage requirements and the consequences of this include the difficulty in providing the required side setbacks and the failure of the proposal to provide appropriate and sufficient landscaping and open space at ground level for residents.

50 Miss Heretis also had a number of concerns in relation to the amenity that the development provides for residents. The first floor Henson Street balcony and the adjoining communal living/dining room are south facing and would have poor amenity as a result of their unsatisfactory solar access. Similarly the ground floor lounge/dining room being south facing would also have poor solar amenity. The five wards comprising 10 beds (out of 55) only have a south-facing window. In response Mr Hills explained that the first floor lounge/dining room exists and that the proposed balcony can only be on the south side given the building's existing orientation. The necessary orientation of the Reading Road building is also constraining in terms of solar access. Whilst not proposed, first floor rooms with southern orientation could be provided with skylights. Miss Heretis was also critical of the placement of the staff lounge and office in the basement in rooms that have no natural light.

51 Whilst I accept that in this regard some tolerance can be given, because this development involves substantial modifications and additions to an existing building I do not accept that these concerns could not have been more sensitively dealt with. More generally in relation to landscaped areas whilst I understand that the residents are not expected to have great demand is for landscaped open space this is not a sufficient reason to avoid the provision of quality, landscaped, accessible open space for people who are destined to spend the vast majority of their lives on the site. Despite its accessibility the roof top terrace does not overcome this concern. Together these matters add to the unacceptability of the proposal.

Character, streetscape and site width

52 Miss Heretis and Mr Hills were in agreement that the architectural presentation of the proposal to both Henson Street and Reading Road was consistent with surrounding residential built forms. Despite this Miss Heretis explained that the absence of a complying site frontage as required by the Seniors SEPP for both buildings contributes to the impacts of the bulk and scale of the proposed development on the streetscape. In this context she was particularly concerned that the 905 mm first floor northern side setback of the Reading Road building was inappropriate and incompatible with established first floor residential setbacks in the vicinity; those being generally 1.5 m. Mr Hills disagreed suggesting that the setback reflects the existing setback on 6 Reading Road. Also, the SEPP 1 objection in dealing with the 20 m Reading Road site frontage development standard argues that the (9 m) deficiency can be considered to be acceptable because this is a secondary frontage to the site and thus compliance is not required. As for the Henson Street frontage the objection argues that taking into account the splayed frontage (about 35°) the site frontage at the building line would be about 23.6 m and therefore in compliance with the development standard.

53 In relation to the Reading Road frontage, I do not accept that this should be treated as a secondary frontage to the extent that the development standard can simply be set aside. Plainly the amalgamated site has two separate frontages (in two different streets) and I see no reason why the development standard should not be applied to both especially as there is no suggestion in the policy that there be any such leniency. As regards the Henson Street frontage I acknowledge that an ambiguity emerges when one applies this site frontage development standard to a site that has a splayed frontage that is different to the actual width of the site. In this case at the building line (the DCP requires a setback of 7.5 m) the site’s frontage at the building line (measured parallel to the street frontage) would be about 23.6 m whereas the site’s actual width (perpendicular to the site boundaries) is 16.4 m. In my view the development standard should be considered in a practical way and the term "wide" interpreted to mean the perpendicular width of the site. Consequently both frontages fail to comply with the 20 m development standard.

54 As regards the Reading Road frontage I have been persuaded by the reasoning of Miss Heretis that, in response to existing nearby building characteristics and taking into account the requirements of the DCP, a greater setback would be appropriate. In the circumstances I would not uphold the SEPP 1 objection. As for the Henson Street frontage I would otherwise have upheld the SEPP 1 objection taking into account that the nursing home already exists on this part of the site; notwithstanding that the building is to be substantially modified.

55 Miss Heretis was also concerned that the elevated single storey link that connects the two-storey elements of the extended building would be inappropriate, being visible from Henson Street. Also, the lack of a green belt to the rear of the property would be inconsistent with the established rear yards of neighbouring properties and thus uncharactistic. Mr Hills responded by explaining that existing and proposed landscaping can soften the view of this link. In this context I accept that the existing open backyard character of the sequence of houses between 2 and 10 Reading Road will be affected not only in terms of the amenity of the close-by residents in Reading Road but also in terms of character generally. The built form thus created will be uncharacteristic although if it could have been lowered in the manner of a conventional single storey structure, with appropriate setbacks, landscaping might have been sufficient to mitigate this concern.

56 More generally the proposed building as a whole will be dominant and uncharacteristically large by comparison with the surrounding low-density residential development and as a consequence, greater attention to matters such as setbacks and landscape setting are required.

Car parking

57 Mr Milner and Mr McLaren are now satisfied with the internal car parking and access design aspects of the proposal. However Mr Milner was of the opinion that because the proposed development is, in terms of the Seniors SEPP a "virtual reconstruction" the total parking requirements should be provided on-site including a complying ambulance bay. On this basis there would be a deficiency of six car parking spaces.

58 Conversely Mr McLaren was of the opinion that the development involves "alterations and additions" and therefore on-site parking need only be provided for the net increase in parking requirements. Also relevant is the fact that dementia patients generate a lesser visitor demand than would otherwise be the case.

59 In my opinion, for the purposes of assessing car-parking requirements, the works associated solely with the Henson Street building comprise significant alterations and additions. The proposed Reading Road comprises a new building that is to be attached to an existing building. In the circumstances I accept Mr McLaren's approach as being appropriate. Whilst the failure to provide the required number of car parking spaces is not fatal to this application it is nevertheless preferable that the DCP requirements be complied with. The difficulties in meeting these requirements are and indication of the constraining nature of the site. Also, given the extent of works involved I would have thought that modifications to achieve an appropriately dimensioned ambulance bay (that doubles as a loading dock) would be appropriate.

Conclusion

60 The proposal now before the Court will undoubtedly improve the nursing home and would, in my view, meet the aims of the Seniors SEPP in relation to the provision of housing that would increase the supply of residences to meet needs of seniors or people with a disability and would make efficient use of existing infrastructure and services. I also understand that there is a need to upgrade the facility in accordance with recent legislative changes and that the acquisition of additional land to assist this process has been difficult.

61 Whilst some tolerance must be given in relation to the fact that the nursing home has existed in the Henson Street building for some 25 years, the significant increase in the size of the home necessitates, at least, a movement towards compliance with the various requirements of the planning controls. In particular, it should be expected that any extension of the building as is proposed in the form of the Reading Road building will, unless good reasons are shown, comply with these controls but, as discussed above, this has not occurred.

62 The objectives of the 2(a) and 2(b) residential zones whilst anticipating a mix of housing forms importantly seek, inter alia, to protect the character and amenity of the area. Taking into account the various provisions in the planning controls including site requirements, density and landscaping, and considering that residential flat buildings are not permitted, I accept that, as suggested by Miss Heretis, the proposed development does not exhibit sufficient low intensity characteristics for it to appropriately respond to these objectives.

63 In all of the circumstances I conclude that the proposal would not as required by the Seniors SEPP "be of good design" and agree with the submission made on behalf of council that the proposal would be an overdevelopment of the site. The appeal is therefore dismissed and the development application refused.

64 For the above reasons the orders of the Court are:

1. The appeal is dismissed.
2. Development application No 2008/242 for alterations and additions to the existing Jenny Lyn Nursing Home at 13 Henson Street Brighton le Sands is determined by refusal.
3. Exhibit C is retained

________________________

T A Bly
Commissioner of the Court
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