Machon Paull Consultancy Pty Ltd v North Sydney City Council - [2007] NSWLEC 447

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Machon Paull Consultancy Pty Ltd v North Sydney City Council [2007] NSWLEC 447

PARTIES:
APPLICANT
Machon Paull Consultancy Pty Ltd
RESPONDENT
North Sydney City Council

FILE NUMBER(S): 11168 of 2006

CORAM: Hoffman C

KEY ISSUES: Deemed Refusal :- Aged Care facility, topography, excavation, front setback, building height, streetscape, bulk and scale, internal amenity and precinct character.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan (LEP) 2001
Draft NSLEP 2001 (General Amendments)
North Sydney Section 94 Contributions Plan 2004
State Environmental Planning Policy No. 1

DATES OF HEARING: 17/05/2007 and 18/05/2007

DATE OF JUDGMENT:
20 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr C. W. McEwen, SC
Instructed by Wilshire Webb Staunton Beattie
RESPONDENT
Mr A. Pickles, barrister
Instructed by M. Jaku
of Malleson Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

20 July 2007

11168 of 2006 Machon Paull Consultancy Pty Ltd v North Sydney City Council
JUDGMENT

1 This is a Class 1 Appeal No.11168 of 2006 between Machon Paull Consultancy Pty Ltd and North Sydney council in regard to the deemed refusal of the demolition of an existing house and an existing nursing home in two other houses, at Nos.7-11 Illiliwa St Cremorne; and the erection of a 3-storey aged care facility above a basement carpark.

Street Address

:

2 7-11 Illiliwa Street, Cremorne.

Lot/DP

:

3 Lots 48 and 49 in DP 935757, Lot 1 in DP 935757 and Lot 1 in DP 301827.

Dimensions:

4 The site is rectangular in shape and has a frontage to Illiliwa Street of 47m. The rear boundary is also 47m, whilst both side boundaries measure 36.575m. Area: Approximately 1,713.5sq.m

Topography:

5 The topography of the site falls from the rear to the front and is elevated above the street up to 6m at the rear eastern portion of the site. The land also falls from south-west to north-east across the site. At the shared boundary with 5 Illiliwa Street the site is generally aligned with the same level as the public footpath, whilst the northern portion of the existing site is elevated some 3m from the footpath at the street alignment.

Existing Improvements:

6 The site is presently divided into four lots. Three currently accommodate the existing aged care facility, whilst 11 Illiliwa Street includes a single dwelling, purchased recently to allow for the expansion of the existing facility. The existing facility consists of two, single storey former dwellings, amalgamated for the current purpose. The existing facility has been extended to the rear boundary to provide for a covered outdoor area and a staff area. A vehicular driveway exists along the south-west boundary. No on-site parking is available. The current facility accommodates 30 beds.

The Locality:

7 The surrounding locality comprises a variety of housing forms, in the most part single and two storey dwellings with pitched roofs, whilst there are also three apartment buildings in close proximity to the site, those being 11A Illiliwa Street, to the immediate north-east, 1 Illiliwa Street at the western end of the same elevated section of the street and 10 Illiliwa Street, opposite 1 Illiliwa Street on the lower side of the street.

8 The sloping topography in the locality has resulted in development with external walls of varied heights. For example, the apartment building opposite the subject site to the north-west, namely 10 Illiliwa Street, may appear as a low scale element in the streetscape. However, the building has a maximum height of 10m. The two storey residences behind the site also have a height of approximately 10m. Unlike the proposed development however, the residences in the locality are characterised by pitched roofs and generally, have not been excavated for parking purposes.

9 The southern side of Reynolds Street, to the south of Illiliwa Street, has higher density housing typologies as permitted in the higher density land use zone, unlike the northern side of Reynolds Street which shares the same zoning as the subject site. These houses on the north-side of Reynold Street overlook the site. No.s 14-24 Reynold Street are all above and at the rear of the proposal. They are all of 1910-1920’s brick house styles on narrow lots with no vehicle access to the rear. Most have fairly recent extensions to the rear leaving only small back yards.

10 A key feature of this locality is the split-level street arrangement at the western end of the Ililiwa Street. The ramp to the elevated section begins at the boundary of 11 and 11A Illiliwa Street. The street is also characterised by the siting of trees in the middle of the road.

Zone:

11 Residential A2

12 LEP: North Sydney Local Environmental Plan (LEP) 2001 Permissible use: "Housing for aged or disabled persons", as defined under NSLEP 2001, is a permissible use within the Residential A2 zone.

Heritage:

13 The site is not listed as an item of heritage significance, nor is it located within a Conservation Area or in the vicinity of a heritage listed item.

Draft NSLEP 2001 (General Amendments):

14 The proposed amendments raise no further issues with respect to the assessment of this application.

North Sydney Section 94 Contributions Plan 2004:

15 No provision is made under this Plan for the levying of contributions for this type of development.

Development Control Plan:

16 Section 7 - Residential Development, Section 9 - Car Parking, Section 14 - Erosion and Sediment Control, Section 15 - Inter Allotment Drainage, Section 19 - Waste Management are applicable to this development proposal. The site is located within the Benelong and North Foreshores Neighbourhood as provided within the Area Character Statement under NSDCP 2002.

State Environmental Planning Policies:

17 SEPP No. 1 - Development Standards

The Proposal

18 Demolition of existing aged care facility and single dwelling and redevelopment of the site for the purposes of housing for aged or disabled persons. The facility is intended for the frail aged, respite care, palliative care and dementia care.

19 The scheme includes 41 single rooms, all with en-suite facilities, built around a central, covered courtyard. Common areas, such as lounges, are provided at each residential level. The second, uppermost level is setback from the main building line by 3-4m and between 7-9m from the site boundaries.

20 The details of the proposed development are as follows:

Site preparation

Demolition of existing aged care facility, single dwelling and all associated structures;
Amalgamation of lots;
Removal of all vegetation, including two trees on site and one street tree to allow for widened driveway.

Excavation

21 Bulk excavation of the site by up to 8.0 m deep to allow for basement parking and services and other non-habitable uses at ground floor level at the rear of the site and habitable rooms at the front of the site above the basement.

22 The excavation cut will be setback a uniform 4m from the rear boundary, 3.8m minimum and 4.8m maximum from the south-west boundary, ( 5 Illiliwa Street) and between Om and 8.5m from the boundary to the north east, (11A Illiliwa Street). The excavation proposed against the north-east boundary is at the vehicular entry and pertains to a fire escape passage. This excavated element starts at the boundary then moves away from the boundary in an arc until it reaches the main excavation line on the north east side of the site located some 4.5m from the boundary. The excavated basement is setback 5m from the front boundary.

23 The depth of excavation at its greatest point will be approximately 8m below existing ground level.

Basement

24 The basement parking and services area has a dual direction entry/exit located in the same position as the current garage attached to 11 Illiliwa Street. Parking is provided for 18 cars, (two of which are designed for the use of disabled persons), a loading service bay, an ambulance bay and a space for the nursing home bus.

25 Other service functions include plant rooms, laundry, a holding room (for the deceased), a garbage room, on-site stormwater detention, storage rooms and a lift lobby to access floors above.

Ground floor plan

Pedestrian disabled access to the site is proposed at the centre of the street facade, leading to the entry to the building located some 10m from the south-west side boundary.

A landscaped setback is proposed across the front of the site, except for the vehicular entry/exit.

Eleven single rooms with en-suite facilities.

Nurse's station, staff room and facilities, kitchen and associated storage.

Hairdresser.

Administration and reception.

Internal courtyard with operable roof.

Lobby, lounge, dining room and day lounge leading to external open space.

First floor plan

Twenty single rooms with en-suite facilities.

Office, nurse's station and utility rooms.

Lounge, dining area, day lounge and balcony/terrace facing street with privacy screen to south-west.

A gate adjacent to the south-west boundary allows access to the side landscaped area. Stepping stones are proposed within the landscaped setback leading to stairs at the rear leading to the second floor. The route is an essential exit in case of emergency where evacuation is required. The path is not proposed as a principal entry.

A stair is proposed within the north-east setback to connect the lower level landscaped terrace off the day lounge with the landscaping at the rear of the site.

Elevated terrace within atrium.

Second floor plan

The second floor is setback up to 4.5m from the external building walls below. A roof garden/terrace is proposed in this setback area, accessible for maintenance purposes only.

Ten single rooms with en-suite facilities.

Nurse's station and store.

Lounge/dining room and day lounge.

Elevated terrace within atrium.

Roof plan

An almost flat parapet roof is proposed. The roof will have a pitch of 5° to facilitate drainage to box gutters concealed by the parapet.

Ventilation ducts are proposed in the southern portion of the roof. The nominated locations for these outlets are in excess of 10m from any boundary.

Each private room is provided with what the applicant has termed "box windows". These are in the form of a bay-type window. The side lights will be clear glazing whilst the windows that are parallel with the building wall are to be highlight windows, in some cases obscured.

The facades are articulated by these window forms, introducing vertical elements across what is otherwise a horizontally proportioned building.

Sandstone plinths and walls are used to provide further articulation.

Exterior finishes schedule

External walls: Sandstone tiles and painted, rendered masonry.

Roof sheeting: Zincalume colorbond.

Downpipes, gutters and fascias: Painted steel.

Balustrading and columns: Painted galvanised steel.

Windows and doors: Powder coated, aluminium framed.

Sunhoods: Galvanised steel support framed, powder-coated aluminium louvres

Miscellaneous

Boundary fences:

Front: 750mm high front picket fence, with masonry plinth in part.

Rear: 1.8m high fence.

Northeast boundary: 1.8m high fence.

North-west boundary: No fence proposed.

Privacy screen shielding first floor lounge from 5 Illiliwa Street.

Perimeter landscaping for screening purposes.

Retention of existing retaining wall at rear boundary and construction of further retaining wall setback approximately 1.5m from rear and north-east boundary to allow for accessible landscaped space and sustainable screen planting.

Mechanical ventilation.

Operations

Peak staffing during morning shift of 10. Maximum number of staff between 10.30pm and 7.00am will be 3-4. Shift changeover times will be 0630, 1430 and 2230.

Visiting hours will be unrestricted, in practice however, the applicant considers 11.00am and 2.00pm to be peak visiting times. Based on visiting patterns of other homes owned by Thompson Health Care, 10-20% of residents would receive a visit on a daily basis.

All catering done on-site. Daily deliveries for essentials such and bread and milk whilst other deliveries will be on a weekly basis. Deliveries will occur between 7.30am to 5.00pm Mon. to Fri. and midday on Saturdays. Deliveries will be made to the basement and all vehicles will leave the site in a forward direction.

Laundry will be done off-site, except for some domestic items. Deliveries and pick from the basement will occur 6 days weekly.

A maintenance person will on the staff to attend to any the minor repairs and to assist in operations.

Waste will be collected by commercial operator three times per week between 5.00pm and 6.00pm.

1 The proposal's bulk scale and height is excessive.

Controls
Clauses 3, 14, 16(a), 16(c) and 17 and the zone A2 objectives of North Sydney Local Environmental Plan 2001 ("NSLEP 2001").

2 The character of the proposed development is not compatible with the character of neighbouring properties or the neighbourhood in which it is proposed to be located.

Controls
Clauses 3, 14, 16(c) and 16(d) NSLEP 2001

3 The proposal includes a substantial amount of habitable areas which are below ground level and have compromised amenity for future occupants in terms of natural light and sunlight access.
4 The landscaped area provided is inadequate in terms of the amount provided and its disposition on the site does not comply with Council's controls.

Controls
Clause 20 NSLEP 2001

26 The respondents evidence was heard from objectors on-site, and their written objections listed below:

27 The respondents expert evidence came from:

Ms A McCabe, consultant town planner.

28 The applicant’s evidence came from:

Mr M George, consultant town planner.
Traffic report from Colston Budd Hunt & Kafes Pty Ltd engineers.
Mr B Lambert, Operations Manager-Thompson Health Care Pty Ltd
Mr D J Thompson, Proprietor-Thompson Health Care Pty Ltd

29 In hearing the evidence on this proposal it became clear there are two basic points of view. If I can summarise:

30

The nursing home is a valuable community asset to the Cremorne area, it is a permitted use in the residential zone and it will be lost if this is not approved. The existing nursing home is outdated and is not suited to meeting current-day expectations of buildings for quality aged care, and has difficulty for further upgrades due to government regulations.
The patients are all 90+ years old and some have dementia. The average stay for a patient is 5 months. The design is an efficient layout to serve the proposed 31 bedrooms, it has few accessible outdoor areas due to the age/frailty/dementia of the patients, the circular corridor on each floor enables perimeter bedrooms all with outside windows (some to the internal courtyard).
The patients walking around the circular corridor can exercise that way, or go through or sit in the central shaded courtyard and always be in safe supervised areas.
Access to direct sun is not as important as the respondent might think due to the sensitivity of the elderly to sunlight. The north-west street facing lounges on each floor and the terraces on the Ground and 1st floor give sufficient access to direct sun for those who need it.
The services being in the basement or underground at the rear enables all activities that might disturb residential neighbours to avoid nuisance.
The applicant has modified the design in seeking to satisfy the respondent’s and the neighbours’ objections – including a change from pitched tiled roofs to a flat roof to preserve the views of those uphill of the site – when one of the respondent’s complaints is the need for pitched roofs to match local character. The large side setbacks to neighbours should give acceptable separation both for visual spacing and privacy. Highlight windows have been provided to the bedrooms to ensure neighbours’ privacy and reduce disturbance from night lighting.
There are other blocky flat roofed buildings nearby (including No.11A the 3-storey old flats next door) so the design matches them if not the other houses in the street. The reduced front setback compared to adjoining buildings can be seen in other houses in the street that have garages/carports in the front setback. The topography of the street makes points of observation of the proposal difficult.
The setback of the top storey from those below to provide a 2- to 4-metre wide (variable) planter garden will screen and soften the bulk of the building; and should be counted as landscaped area. The agreed landscaped area of the proposal under the statutory definition is 29% when the standard required is 60%. Adding the roof garden area, the proposal would achieve 50% and that will provide visual greenery compatible with the streetscape.
The council’s statutes and controls are derived from residential development that this is not, and it is unreasonable to expect the proposal to be the same.

31 The Respondent’s case is, in my summary:

1. The council’s statutes and controls apply to all buildings in the residential zone. The purpose is to ensure as far as possible that the different uses permissible in the zone can operate in harmony with each other and avoid nuisance and loss of amenity.

2. The character of the street is predominantly pitched tiled roofed houses of 1- and 2-storey, some with attics, each on its own lot with vegetated front gardens. This creates a pattern or rhythm in the street that is entirely different to a long blocky building 3-storeys high, 35 m long continuous over 4 normal house lots, with a sunken front yard, and facades that have little in common with the fine grain or detail of the houses. The 17m wide in-out driveway with pedestrian escape path on the north-east corner of the building yaws 3-storey high only 5.4 m setback from the street (when the adjoining flats at No.11A are 8.4m setback) with no opportunity for landscape to soften the rather industrial appearance at that point.

3. The fact that some houses have garages/carports in the front setback is not a justification for the 5.4m setback of the proposal. The garages/carports are of an entirely diminutive scale compared to the proposal. The garages are plainly subservient to the houses set further back from the street. The proposal brings the major bulk of the building forward on the site where it will be even more highly visible than if it were set back the same or more than its neighbours.

4. The narrow front setback and the deep excavation of the front yard will create a permanently shadowed area that would be unsuited to sitting out in the way the existing front yard of the existing nursing home is organised. The excavation of the front yard means it will contribute little to the streetscape, and will only emphasise the size and subterranean parts of the proposal when the controls urge development to minimise excavation and present their front gardens to the street. That is part of the streetscape character.

5. The non-compliance with the landscaped area statutory requirement will be obvious from this lack of front setback and front garden appearance. The rooftop garden planter will only serve to screen/soften the top floor, it won’t reduce the impact of the major bulk of the building. It won’t make the building appear in a landscaped garden setting………it will just have some greenery on top. The reason for a 60% of site area landscape requirement is to maintain the existing garden setting character by ensuring new development creates a similar appearance.

6. The side and rear setbacks and the reduction of the roof height may overcome, or achieve acceptable levels of impact on the neighbours, but that cannot be “traded” as compensation for non-achievement in other aspects.

32 In considering the solar access matters, it seems to me that there are opportunities for sitting in the sunlight on the 1st floor terrace and inside the lounge windows adjoining. Also there is a terrace on the ground floor adjoining another lounge above the driveway; however that lounge window is beneath a large overhang of the 1st floor and would get no sun, so only the terrace would be suitable. On the 2nd floor there is another lounge that would get sun in its windows morning and afternoon.

33 The council bringing no contrary aged care evidence on the sensitivity of the elderly to sunlight, I accept the applicant’s evidence that in persons over 90 years old, in frail health, there is limited need for space to sit in the sun. However that does not lead to any justification for the lack of complying landscaped area of the site that is required for more reasons than outdoor recreation space.

34 At one time during the hearing the comment was made that the existing houses containing the nursing home fitted into the streetscape character and the proposal should be able to achieve something similar. The applicant put that the main feature of the existing houses is their pitched tiled roofs and that feature had been deleted form a previous design to reduce view loss for the neighbours uphill. The respondent said it did not raise the flat roof as an issue because of that benefit.

35 There remains that large rectangular bulk of the building 2-,3- and 4-storeys in height (the latter when seen from No. 11A where the basement entry appears as a 4th storey), and 35 m long, with relatively minor articulation, and the rather industrial bay appearance of the driveway and basement entry, and the narrow front setback and excavated front yard that accentuates these uncharacteristic features in the streetscape. The older style flats at No. 11A are relatively unadorned and blocky in appearance; but although it is part of the existing streetscape, it cannot be used as a justification for the proposal as the flats too do not comply with the council precinct character objectives. The flats at least reflect the pattern or rhythm of allotment widths along the street, and an 8m plus front setback that provides some elements of “fitting in”.

36 At another time in the hearing the comment was made that the site could be used for 4 or 5 townhouses if the nursing home did not proceed and the townhouses with 4 driveways and four building elements could have a similar bulk to the proposal. I don’t have such a proposal before me, but I believe it is not unreasonable to observe that 4 townhouses designed in character with the streetscape would have facades of much more articulation and design elements that would break up its bulk and scale to give an appearance more sympathetic to the streetscape than this proposal.

37 If that can be done why not this proposal? I do not think it is acceptable to say that an aged care facility being different to a residential complex must appear so institutional and bulky as the proposal and so prominent in the streetscape.

38 The applicant is asking for significant concessions from the consent authority such as:

Landscaped area is 29% of site when 60% is the standard under the statute.

The maximum number of storeys allowed is 2 above existing ground level, the proposal has 3, and

The proposal measures 9.9m height between the lowest habitable floor and the up-most point above it when the maximum allowed is 8.5m. Although the proposal does comply with the maximum 8.5m building height plane, this is due to the large excavation below existing ground level.

The flat roof form to the top storey does not comply with one of the objectives of the building height standard and precinct character requirements but the respondent accepts the flat roof due to its contribution to view sharing for the neighbours uphill.

The 6.5m to 8m excavation for the basement and rear Ground floor level does not comply with the standard.

The front setback under the controls in the Benelong precinct of North Cremorne can be allowed as small as 3m, but for streetscape compatibility the appropriate setback is found from the predominant setback line of adjoining and nearby main buildings. The subservient garages allowed in some front setbacks cannot be used when the main buildings set the pattern. In this case No. 11A has a front setback of 8.2m, and No. 5 has a front setback of 10.5m, and even the existing nursing home has 9.2m front setback with a bay window in part of the façade that comes to 6.6m from the front boundary. The proposal has its 35m long front façade setback 5.4m with the entry porch and terrace above the porch coming to 1.8m from the front boundary.

39 The North Sydney density controls are by a combination of statutes and controls on height, storeys, building height plane, landscaped area and setbacks. As such they play several roles in shaping new development in regard to density, character, setting and relationship to neighbours. Therefore they have a heightened importance to controls that relate only to amenity and merit considerations.

40 In regard to the internal amenity of the proposal, I have already given my opinion on the need for places to sit in the sun and sunlight to the bedrooms.

41 I do note that the ground floor combined entry and lounge has its only sources of light via windows at the base of the 3-storey central courtyard and the entry doors/windows beneath the porch roof that projects 3.8m thus reducing sunlight that can enter those rooms. Also the porch is sunken in the front yard excavation such that the terrace on its roof is about level with the public footpath 1.8m away at the street boundary. On the boundary is a front fence. The likelihood of much sunlight getting into the combined entry/lounge is limited. I am of the opinion this major arrival/meeting/socialising area should be able to achieve better amenity in terms of natural lighting. Whilst this is not determinative of the appeal, it illustrates another shortcoming of the design that incorporates this excavated front yard and narrow front setback.

42 In regard to the amenity of the outlook of bedrooms, I have already noted the privacy issue of proximity for bedrooms facing the internal courtyard. On the exterior the highlight “bay” windows to the bedrooms prevent observation of the garden outside from the bedrooms, except through the narrow “slit” windows on the sides of the bays. The applicant said this was designed to protect the privacy of the neighbours, and to minimise light spill at night.

43 That might be the case for the 2nd floor windows facing No. 11A and the 3rd floor windows facing No. 5, but all the rest are in the excavated side and rear setbacks that are to be heavily vegetated for widths between 3.8m and 4.5m. And at the rear, as seen during the hearing, all the houses of the neighbours have high fences with screen vegetation that would make it difficult to see the top of the 3rd floor roof let alone the bedroom windows below. The windows referred to could have lower sills in my opinion, but that could be the subject of a condition of any consent, and thus could not be determinative.

44 Overall, the determinative issues are Nos. 1, 2 and 4.

45 In the case of Issue 1, cl 3(c)(ii) of the LEP, in relation to non-residential development says:

Ensure non-residential development does not adversely effect the amenity of residential properties and public places, including adverse affection by reason of use, design, bulk, scale or appearance of the development………

46 The specific zone objectives for Residential A2 at cl 14 and 16 of the LEP say:

Residential A2.

(a). Maintain lower scale residential neighborhoods of mainly detached and duplex housing, and
(d). Minimise the impact of non-residential uses and ensure these are in character with the area.
14. Consent must not be granted….(where sic. )…..development…...is inconsistent with the specific aims of this plan, the objectives of the zones or the objectives of the control.

47 The excavation is for more than just basement carparking so there is technical non-compliance with cl 17(f) of the LEP. Whilst this might be acceptable for a nursing home if it is better concealed from the streetscape, in this case the excavation is partly to increase the size of the development for non-carparking purposes, and that is obvious from the street due to the excavated front yard and narrow front setback that emphasises the 35m continuous 3-storey length of the building and its bulk and scale compared to the other buildings in the streetscape.

48 The building does not reflect the predominant front setback of main buildings in the street. See the North Sydney Development Control Plan 2002, cl 7.3(f)(i). The narrow front garden and its excavated nature does not allow a result that achieves the objectives for landscape and front gardens in cl 7.3(k) and (n) of the same document. The North Cremorne DCP Character Statement reinforces these requirements in Quality Built Form and Quality Urban Environment clauses.

49 Whilst the social benefits of having an aged care facility in the suburb are significant, the physical and amenity non-compliances with the environmental and town planning legislation of the council should not be overridden. A design for such a facility needs to achieve the aims and objectives of the legislation to an acceptable extent, as well as the clients needs.

50 The building does not comply with the statutory height of 2-storey and 8.5m and the landscaped area standards in clauses 17(1)(a) and (3) and 20 of the LEP. The landscape deficiency is a major factor being only 29% of site area when 60% is required. Added to the bulk and scale and lack of sympathetic detail of the facades to promote the character of the street, these factors combine to produce an unacceptable result.

51 The proposal clearly does not achieve the aims and objectives of the statute and zone and therefore the State Environmental Planning Policy No. 1 objections tendered for building height and landscaped area cannot be supported. The proposal has been shown by the evidence to be an over development of the site. A lesser sized building may be able to be designed to the council’s satisfaction.

52 Therefore the orders of the Court are:

______________________

K G Hoffman

Commissioner of the Court

ljr

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Machon Paull Consultancy Pty Ltd v North Sydney City Council [2007] NSWLEC 447

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CITATION:	Machon Paull Consultancy Pty Ltd v North Sydney City Council [2007] NSWLEC 447
PARTIES:	APPLICANT Machon Paull Consultancy Pty Ltd RESPONDENT North Sydney City Council
FILE NUMBER(S):	11168 of 2006
CORAM:	Hoffman C
KEY ISSUES:	Deemed Refusal :- Aged Care facility, topography, excavation, front setback, building height, streetscape, bulk and scale, internal amenity and precinct character.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan (LEP) 2001 Draft NSLEP 2001 (General Amendments) North Sydney Section 94 Contributions Plan 2004 State Environmental Planning Policy No. 1
DATES OF HEARING:	17/05/2007 and 18/05/2007
DATE OF JUDGMENT:	20 July 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr C. W. McEwen, SC Instructed by Wilshire Webb Staunton Beattie RESPONDENT Mr A. Pickles, barrister Instructed by M. Jaku of Malleson Stephen Jaques