Oreison Pty Ltd v Hurstville City Council - [2012] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation: Oreison Pty Ltd v Hurstville City Council [2012] NSWLEC 1210
Hearing dates: 25-26 July 2012
Decision date: 03 August 2012
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal dismissed

Catchwords: Residential care facility, impacts on adjoining properties, whether development has adequate regard to design principles, whether SEPP 1 objection is required
Legislation Cited: Environmental Planning and Assessment Act 1979;
Hurstville Local Environmental Plan 1994;
State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004;
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004;
State Environmental Planning Policy No 1- Development Standards
Cases Cited: Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014
Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41;
Wehbe v Pittwater Council [2007] NSWLEC 827;
Texts Cited: Development Control Plan No. 1 - Hurstville LGA
Category: Principal judgment
Parties:
Oreison Pty Limited (Applicant)
Hurstville City Council (Respondent)
Representation:
Counsel
Mr M Wright (Applicant)
Solicitors
Mr C Gough Storey & Gough Lawyers (Applicant)
Mr A Seton Marsdens Law Group (Respondent)

File Number(s): 10203 of 2012

Judgment

This is an appeal in relation to the refusal of Development Application No10/DA-74 by Hurstville City Council. That application proposed the construction of alterations and additions to an existing residential care facility and the consolidation of the site under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (SEPP).

The issues in the appeal are whether:

the development standard contained in clause 40(3) of the SEPP applies to the development and if it does, should the objection to that development standard be upheld;
the proposed setback to Queensbury Road is adequate;
the proposal satisfies the design principles of the SEPP;
the proposal adversely impacts the amenity of adjoining properties;
the development can be connected to water and sewer.

The site and its context

The Fairlea Aged Care Nursing Home operates from premises known as 9A-11 Hawk Street, Penshurst and caters specifically for women including those with dementia. The facility currently provides 25 low care beds and 47 high care beds and is conducted from a one and two storey building that was most recently extended in 2004. A basement carpark for 8 cars is below the newer two storey wing.

The existing site comprises two adjoining allotments, Lots A and B in DP 406076. These are irregular shaped lots with a combined area of 2796 sqm and frontage of 19.5 m to Hawk Street and 55.45 to Philip Lane.

The site of the proposed new wing is described as No 8 Queensbury Road and comprises Lot 15 in DP 8266. That lot has a frontage of 15.24 m, depth of 45.72 m and area of 836.1 sqm. It shares common boundaries with Nos 6 and 10 Queensbury Road, (for their entire length), No 9 Hawk Street, (across its rear boundary) as well as the southern portion of the nursing home site.

It is proposed to consolidate the three allotments to allow a connected and integrated development.

The development site is surrounded by residential development in the form of detached housing. The subdivision pattern is irregular and lot sizes vary in area and shape. Housing comprises one and two storey dwellings of various eras. A dual occupancy development is located opposite the nursing home and there are multi-unit housing developments, in the form of villa houses further north and west of the site.

The proposal

The application subject of this appeal seeks consent to carry out alterations and additions to the existing building and construct a new wing on adjoining land known as No 8 Queensbury Road.

The extent of alterations and additions to the existing building is described in the council's amended Statement of Facts and Contentions, Exhibit 1 and primarily involves minor additions and internal changes to the use of areas. None of the work to the existing building, apart from its connection to the new wing and extension above existing stairs, is controversial.

The works to be carried out on the Queensbury Road site involve:

Demolition of existing dwelling and outbuildings;
Construction of a two level building above basement carpark
to be known as the Hope Wing to provide an additional 25 low level car beds.
Connection of the new building to the existing nursing home.

The basement area would be accessed from Queensbury Road and provided five carparking bays, including an accessible space, a kitchen to service the Hope Wing, waste facilities, storage, plant and holding rooms. It is not intended to provide a link from the basement to the existing nursing home basement carpark.

The ground floor would contain a common living and dining room with access to an outdoor garden and courtyard, staff office and clinical room, storeroom, linen room, 12 single bedrooms with associated en-suite and those 8 rooms along the southern side would also contain ground level terraces.

At first floor level, similar facilities would be provided with the common room accessing a balcony and the 10 south facing rooms incorporating a balcony. A total of 13 single bedrooms with ensuites would be provided at this level.

A rooftop garden terrace is proposed and all levels would be connected by stairways and a lift.

Access between the existing and proposed new wing would be through a two storey corridor constructed in the southern corner of the existing site, 1.5 m from the site's common boundary with No 10 Queensbury Road.

The Hope wing would be erected, at ground level on a setback of 5.865 m to Queensbury Road and, on first floor level, 5.265 m, 1.5 m from the north-western boundary (along its entire common boundary with No 10 Queensbury) and 6 m from the rear boundary of No 8 (common with No 9 Hawk Street). The balconies along the southern elevation of the building would be erected 1.5 m from that boundary (adjoining No 6 Queensbury), the main walls of all bedrooms, 2.0 m from that boundary and the rear common rooms setback 4.0 m to provide for the retention of a row of existing trees within the rear yard of No 6.

The rooftop terrace would be set in 4.0 m from each side boundary and the lift and stairway that service that area erected to within 1.5 m of the north-eastern corner of No 10 Queensbury Road appearing as a third storey element in that location. That terrace is located in the rear third of the roof area with a roof garden extending towards Queensbury Road to within 11.71 m of the site boundary. The terrace is approximately 13 m from the common boundary with No 9 Hawk Street.

The planning controls

The site is within Zone 2 Residential under Hurstville Local Environmental Plan 1994 (LEP). The development would be prohibited under the provisions of the LEP.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP) applies to the site. Clause 2 of the SEPP sets out its aims which are:

to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

Under the SEPP, the development would be defined as a residential care facility, a form of seniors housing and, pursuant to the provisions of clauses 15 and 16, all forms of seniors housing are permitted with consent in Zone 2 if they are carried out in accordance with the policy. The council is satisfied that the site is located in proximity to the services required by clause 26 however, contends that the applicant has not provided sufficient evidence in relation to the water and sewer servicing requirements under clause 28 which state:

1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

(2) If the water and sewerage services referred to in subclause (1) will be provided by a person other than the consent authority, the consent authority must consider the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure. In locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development.

Clause 32 of the SEPP requires:

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

Division 2 contains design principles and, of relevance to the appeal are clauses 33 (Neighbourhood amenity and streetscape), 34 (Visual and acoustic privacy), 35 (Solar access and design for climate) and 36 (Stormwater) (in regard to an issue raised by an objector). The provisions of those clauses are as follows:

33. The proposed development should:

(a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and

(b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.

34. The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and

(b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.

35. The proposed development should:

(a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and

(b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.

36. The proposed development should:

(a) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas, and

(b) include, where practical, on-site stormwater detention or re-use for second quality water uses.

The council contends that the development standard for site frontage under clause 40(3) applies to the application. Subclause (1) requires:

A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause.

Subclause (3) contains the development standard and states:

The site frontage must be at least 20 metres wide measured at the building line.

The applicant contends that the clause does not apply to the application, however, for the purpose of ensuring the matter can be considered, has submitted an objection to that development standard pursuant to the provisions of State Environmental Planning Policy No 1- Development Standards (SEPP1). This contention is addressed below.

Clause 48 provides standards that cannot be used to refuse development consent for residential care facilities and states:

A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds:

(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys), or

(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less,

(c) landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided,

(d) parking for residents and visitors: if at least the following is provided:

(i) 1 parking space for each 10 beds in the residential care facility (or 1 parking space for each 15 beds if the facility provides care only for persons with dementia), and

(ii) 1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time, and

(iii) 1 parking space suitable for an ambulance.

The council contends that the provisions of clauses 48(a) and (c) are not met.

Development Control Plan No. 1 - Hurstville LGA (DCP) applies to all land to which the LEP applies except for that land within the city centre. Accordingly, it would apply to the site. The council says that certain provisions are relevant to the application however the applicant says the DCP is not relevant as it is inconsistent with the provisions of the SEPP and those clauses which the council say apply are not relevant to a residential care facility.

Part 4.5 of the DCP applies to Housing for Seniors or People with Disabilities and clause 4.5.3 provides controls in relation to building form and development design with the following objectives:

Appropriate scale and building design complementing the local context and streetscape.
A high level of amenity to adjoining and surrounding properties.
Buildings complement the natural environment, topography, urban form and adjoining development.
Buildings and site design is environmentally sustainable.

Clause 4.5.3.3 provides controls for setbacks and subclause (a) is relevant to the contention and states:

The minimum front boundary setback for a dwelling to the primary street frontage is 6 metres, measured to any wall of the dwelling or the front of any structure (patio, landing etc) which has a height of more than 1 metre above natural ground level.

The evidence

The hearing commenced on site and evidence was heard from a number of objectors to and supporters of the development. The view included observation of the development site from adjoining properties and from within the existing nursing home.

The issues raised by the objectors are summarised as being:

Excessive height, bulk and scale of the new wing that is out of character with locality;
Linked building will enclose backyard blocking sunlight and breezes and overwhelm the adjoining property;
Loss of amenity to adjoining properties due to building's location too close to boundary, in particular the balconies which overlook backyard;
Noise and lights from the existing facility are already disturbing neighbours and results in loss of privacy and new work will increase this impact;
Traffic, parking and associated noise impacts introduced to a street that is currently a quiet residential street;
Development will exacerbate existing problems with stormwater drainage.

Those persons who spoke in support of the application had mothers who currently reside in the nursing home and spoke highly of the quality of care provided and the difficulty they had finding suitable accommodation for their parent prior to them taking up residence at Fairlea.

The council does not dispute the need for the provision of quality aged care services in the area.

Expert town planning evidence was heard from Mr C Young for the applicant and Mr G Turrisi for the council. Their expert report grouped the contentions in the case into four matters as follows:

Width of 8 Queensbury Road property, clause 40 of the SEPP and the need for an objection to the development standard;
Non-compliance with DCP setback
Character and amenity (clause 33 of SEPP)
Other matters - outstanding information

Clause 40

The parties disagree whether the provisions of clause 40 of the SEPP, specifically sub-clause (3) which requires a minimum site frontage, when measured at the building line, of 20 m, applies. It is the applicant's position that the site has only one frontage and that is the existing site entry point off Hawk Street/Philip Lane and that combined frontage is 74.95 m. The Court notes that the evidence does not provide width of the site at the building line at this frontage however, it is satisfied that it would significantly exceed 20 m. The applicant says that because all entry to the development, other than staff carparking, is from Hawk Street and because No 8 is contiguous to and will be consolidated with the existing nursing home, Hawk Street is the site's frontage and Queensbury Road is its rear entry. Mr Wright, for the applicant submits that clause 40 is to be read in the singular as it refers to site frontage and not site frontages.

Mr Young concedes the site will retain an address to Queensbury Road, that there is a need for the development to address that road in a design sense, that the site has more than one frontage and there is to be operational access for loading and staff access from that road however maintains the main entrance is off Hawk Street and for that reason, this is the site frontage.

Mr Turrisi disagrees and says the Queensbury Road site has a frontage and that it is less than 20 m. Similarly, Mr Seton, for the council, submits that a site can have more than one frontage, that this site has two frontages, that the SEPP does not distinguish between a frontage that provides the main access to a site or its secondary frontage, that the majority of development the subject of the application will take place on the Queensbury Road site and all of the development on that site faces Queensbury Road, that the applicant's expert has acknowledged there's a need to address that street and that there is a building line to Queensbury Road.

SEPP 1 objection

Mr Young prepared an objection to the development standard contained in clause 40(3) of the SEPP following a conciliation conference held before another Commissioner of this Court prior to the hearing. Whilst not conceding the development standard applied, the objection was lodged to allow the matter to proceed in the event that the Court found the standard applied.

Applying the principles outlined by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, Mr Young noted that the SEPP does not specifically express any objective relevant to the development standard. He concludes the objective to be:

To avoid gun barrel development;
To ensure that development of seniors living housing occurs on properties that have sufficient width to accommodate adequate landscaping, privacy and articulation.

and says these objectives are met because the built form appears from the streetscape of Queensbury Road to be a a two storey dwelling of contemporary design and construction of similar bulk and scale, height and proportion of the adjoining buildings, it does not include a long, straight driveway and its design incorporates privacy screens to avoid looking into side yards of neighbours. In addition, he says that sufficient area exists within side setbacks for generous planting, the reduced site width does not prevent a highly articulated structure from being erected and the building has adequate side setbacks and is not overly horizontal in proportion. Finally, he contends the standard does not attempt to preserve streetscape and character of an area and says that a wider site would produce a building form out of character with the surrounding development arguing that development will generally be constructed to the minimum side setbacks to maximise efficient design in conjunction with solar access impacts. He concludes that the objective of the development standard is met.

Mr Young says the development standard is not relevant as the actual site frontage is Hawk Street/Philip Lane and this is the entrance to the seniors living development because no pedestrian entry is proposed via Queensbury Road, with only a fire exit provided.

In considering the objects of the Environmental Planning and Assessment Act 1979 (the Act), Mr Young says that if the frontage of the site is the Queensbury Road frontage or that any section of the land adjoining a road is considered to be a frontage, such conclusion does not encourage the proper management and development of towns and villages for the purpose of providing a social and economic well being of the community and a better environment, nor the promotion and co-ordination of the orderly and economic use and development of land in this case. He noted the additional beds have been approved by the Commonwealth government and says there is a need for the accommodation in the community and that by adding to the existing residential care facility, this is a more efficient and economic use of land rather than construction a stand alone facility not physically linked to the existing centre. He concludes that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case.

Mr Turrisi accepts Mr Young's consideration of objectives however, says the objective goes further and adds the objective of allowing flexibility for a development to be designed having regard to its urban context and to ensure that the proposed built form is of a scale that limits its impacts to its neighbours, as an infill development. Applying that objective and having regard to the interface of the proposed development, particularly to the rear of No 10, he says it is not reasonable to support a variation to the standard. He says the fact that the site is narrow presents more issues and that the 20 m width required under clause 40(3) is about having regard to context and sees a link to clause 33 of the SEPP and how a building is positioned on a site, going to streetscape, character and amenity.

Mr Turrisi says the footprint and scale of the proposed building and its linkage to the existing facility is uncharacteristic compared to the general form of other developments in the area and the site, being in a low density area. He says a two storey building over its entire building footprint, compounded by the physical link to the existing two storey building thereby creating one larger building, has an excessive scale and a significant impact to the neighbouring properties, particularly No 10. He does not agree with Mr Young in regard to articulation and says the built form has little articulation to the side boundaries and that the building will read from the street as one long building with its overall length being in the order of 43 m.

With a side setback that varies along its northern boundary of 1.5 m and a southern boundary setback of 1.5 m to the outer face of the balcony and 2 m to the face of the external wall, Mr Turrisi says the building provides a gun barrel effect with limited landscaping and concludes the building, particularly to the rear, together with its length and scale when viewed from the adjoining properties, is uncharacteristic in its form in this area. Mr Turrisi says that the 20m width would concentrate the building differently and could provided for more landscaping whereas Mr Young said a wider site could result in a larger building but acknowledged the additional width would, if the same building were proposed, have different impacts but said the impacts of the proposed building on adjoining properties were acceptable. Mr Turrisi says they are not.

Whilst Mr Young accepts Mr Turrisi's objective regarding flexibility, he does not agree the issue of limiting impacts on adjoining neighbours to the extent of producing bulk and scale reflective of existing built form is the intended objective of the development standard. Mr Young agrees that there is an impact to No 10 but does not agree that such impact is related to the width of the block on Queensbury Road or setbacks or that it cannot be mitigated whereas Mr Turrisi says the additional lot width is required to allow greater flexibility in a manner that the building could be reshaped and repositioned to provide improved articulation compared to that proposed or to relocate floor area to improve neighbourhood interface and amenity.

Both experts agree that the objective of clause 14 of the SEPP is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age. Mr Young says that the width of the site at Queensbury Road meets this objective and notes it is related to the design of housing for seniors not development reflecting the existing development density or built form of an area. Mr Turrisi says that the provision of such facilities should not be at the expense of ensuring the design principles are taken into account as a major consideration and that these objectives do not override the relevant considerations under clauses 33 and 39 of the SEPP.

DCP setback

The experts agree the proposed front setback to Queensbury Road is equal to or behind a line drawn between the setbacks of the adjoining dwellings on either side of the proposal and that the failure to comply with the 6 m setback control contained in the DCP is 0.145 m at one point only at the ground level and 0.8m from the first floor. They also agree that the provisions of clause 33(d) of the SEPP apply in regard to the front setbacks and this clause requires a development to be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line.

Mr Young says the proposed building line has been established by the commonly accepted practice of drawing a line between the adjoining buildings and proposing the building to be constructed behind that line as part of and in sympathy with the existing building line, citing the building line for the garage of No 10 is less than 5 m while that of No 6 is 6 m. He says that the proposal whilst not necessarily the same as the existing building line, is considered to meet the design principle of clause 33(d).

Mr Turrisi says the non-compliance is minor and because there is no site constraint that would prevent compliance, it should be setback 6 m however, he did not cite any adverse impact that arises as a result of the proposed building line.

Clause 32 and the Design Principles

The experts agree that the local area against which the development is to be assessed is that area on both sides of Queensbury Road between George and Argyle Streets, Philip Lane and to No 1 Hawk Street. They also agree that the overshadowing impacts of the development, whilst casting additional shadows onto adjoining properties, complies with the controls of the council and those contained in AMCORD.

Mr Young says the bulk and scale of the proposal as a residential care facility linked to an existing residential care facility is satisfactory in this location and does not require a single storey rear limitation. He says the development must be considered across the site as a whole, and the resultant floor space ratio, at 0.86:1 is less than the 1:1 allowed under the SEPP. Because this ratio is twice that of infill housing allowed under the DCP, any seniors housing development would have a bulk and scale greater than existing residential development but he says the development as designed does not adversely impact on the area. He says the development is of good design and satisfies the objectives of the SEPP as set out in clause 2 and the design principles contained in that policy but, will, because of those controls, be different to other forms of housing existing and proposed in the area.

Mr Turrisi disagrees and says the proposal is not of good design and does not reflect the area's context and for that reason, is in conflict with aim 1(1)(c) of the SEPP. He says there has been a lack of contextual assessment to manage the interface of the neighbouring properties both in terms of scale and impact and the aim of clause 2(2)(b) is also not achieved.

Mr Young says the proposal responds to the site and its characteristics and form particularly its linking with the existing residential care facility and its juxtaposition to the existing site and its length.

In regard to the height control contained in clause 48(a) of the SEPP, Mr Young says the enclosed entry staircase and lift which provide access to the roof terrace from a built element of approximately 12.5 m in height which is above the 8 m controls that, if met cannot be used as a reason to refuse consent. He says the proposal is not in conflict with this clause and the element in excess of 8 m is located towards the rear of the building to maintain consistency with the streetscape and adjoining building heights of Queensbury Road and adopts the opinion of a council officer in their report in relation to the application which stated the enclosure is not a floor and therefore, the height of that element is not a reason for refusal.

Mr Turrisi disagrees and says that the height and scale of the development are in direct conflict to the considerations included in clauses 33(a) and (c).

Mr Young has a similar opinion in relation to the non-compliance with the amount of landscaping and says that the 13 sqm per bed proposed exceeds the 12.6 sqm currently provided and that it is not a reason to refuse consent. He concludes the proposal meets the design principles set out in clause 33. Mr Turrisi disagrees and says the significant departure from the 25 sqm requirement is a demonstration that the building footprint and the overall scale is inappropriate having regard to the impacts the proposal will have on adjoining properties and that a lesser footprint, with additional landscaping on site will align with the low density character of the area and reduce the scale and walling affect onto the adjoining properties.

Mr Turrisi says the proposal will result in an unacceptable scale to its rear, which will impact the amenity of the adjoining properties and, compounded by the lack of articulation of the building along its side boundaries and the walling effect created by the linkage of the new building with the existing facility results in a two storey building along the entire rear and side boundary of No 10 Queensbury Road. He says this is not characteristic of the low density residential area and submits that No 6 is also impacted but to a lesser extent however, he raises privacy concerns in terms of the balconies located along the common boundary to that property and says that this is not satisfactorily addressed through the screens proposed but agrees that horizontal screens would go some way to addressing the impact. Mr Young says the rooms and balconies will be used infrequently and any privacy of acoustic impact would be similar to or less than what would occur in a typical residential dwelling/backyard.

Outstanding information

Of the issues raised in the amended Statement of Facts and Contentions, the council pressed the issue of service requirements included in clause 28 of the SEPP. It says the Court cannot be satisfied, by way of written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

The applicant tendered, as exhibit F, correspondence from Whipps-Wood Consulting that advises that company had reviewed Sydney Water infrastructure diagrams and confirmed that a 150 mm water main is available for connection in Queensbury Road and a 150 mm sewer main traverses the site between the rear boundaries of No 10 and No 6 Queensbury Road and is available for connection. A copy of that plans was included with the correspondence. Mr Seton submits that there is no evidence that the facilities are adequate for the demands generated by the development. Mr Wright submits that exhibit F provides clear evidence that both water and sewer is available to the site and that, in accordance with usual procedure, the applicant, if consent is granted would have to pay for any amplification works required by Sydney Water by way of obtaining a s73 Developer Certificate.

Issues raised by objectors

The first four issues raised by objectors and detailed in [32] are addressed above. The council did not raise in its contentions issues of parking and traffic or stormwater. From the evidence provided to the Court, the parking proposed satisfies the provisions of clause 48(d) of the SEPP and, if met, are standards that cannot be used to refuse consent.

The council's without prejudice consent conditions include conditions that address stormwater management and there is no evidence before the Court that the development will have any adverse impacts in regard to the collection and disposal of stormwater.

It is apparent that the operators of the nursing home need to develop improved communications with neighbours, particularly when alarms are triggered or tested and ensure balcony lights are not left on.

Conclusion and findings

It is clear that there is a need for high quality aged care in the vicinity of the site and, from the evidence provided to the Court, the application before it would, if approved go towards increasing the supply of that care in accordance with the aims of the SEPP. That factor alone however, is not the only consideration of the Court. The SEPP includes a number of matters, considerations or standards that must be taken into account and the consent authority satisfied of, before consent can be granted. In particular, in regard to the subject application, the provisions of clauses 26, 28, 30 and 32. In addition, the development standards contained in clause 40 must be satisfied where applicable, or be the subject of variation under SEPP1.

The parties agree that the site is appropriately located in regard to those services required by clause 26 of the SEPP.

From the evidence provided, particularly the plan attached to Exhibit F, I am satisfied that the site can be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage in accordance with the requirements of clause 28 of the SEPP. These services are currently available to the site and, if necessary, would have to be amplified at the cost of the applicant. There is nothing to suggest that this is not possible.

Lloyd J in Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41, deals with the provisions of clauses 32 (then 30) and 33(a) (then 31(a)) in particular, and provides guidance in their application, noting his comments refer to an earlier version of the SEPP. His Honour states at [6]:

In the context of the present case, it can be seen that these provisions require the consent authority to go through a process which has a number of stages. The first stage, required by cl 31(a), is the recognition of the desirable elements of the location's current character (or, in the case of precincts undergoing transition, where described in the local planning controls, the desired future character), "so that" the consent authority can then proceed to the second stage. The second stage, also required by cl 31(a), is to make an assessment of whether the new buildings "contribute to" the quality and identity of the area - that is, whether they contribute to the quality and identity of the desirable elements of the location which have been identified in the first stage. The third stage is to determine whether the proposed development satisfies the remaining sub-cll (b) to (g) of cl 31. The fourth stage is required by cl 30 - the consent authority must determine whether it is satisfied that adequate regard has been given to these principles and if not, then the development application must be refused. Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards and other criteria in Pt 7 of the Policy (including cl 79).

With regard to the site analysis provisions of clause 30 and the design principles referred to in clause 32 and detailed in clauses 33-39, whilst I am satisfied that the information required and analysed under clause 30 is sufficient to assess the application, I am not satisfied that the design of the development has sufficient regard to the principles contained within Division 2 of the SEPP.

That is because, having regard to the evidence provided during the hearing, I am not satisfied that the development has been designed to satisfactorily recognise the desirable elements of the location's current character or contribute to the quality and identity of the area, particularly in terms of building setbacks from the side boundaries, the area available for landscaping and the bulk of the works which do not maintain reasonable neighbourhood amenity, particularly in relation to Nos 6 and 10 Queensbury Road.

Having the benefit of the site view, it is apparent that the location's current character comprises one and two storey dwelling houses with rear yards of various size. The experts agree it is not an area undergoing transition. Where development is two storeys, the bulk of that building does not occupy the majority of the site. It is either broken into single and two storey elements or there are relatively large open areas of backyards provided to break the bulk of those two storey elements. In the case of multi-unit housing, the majority of those buildings are single-storey villa houses and are not comparable in terms of bulk and scale to the proposed new wing. I recognise that the most recent addition to the nursing home is a two storey structure built in close proximity to the side boundary, this is not representative of the primary character of the location, it is a discordant element in that location and, from the evidence provided by the neighbour, does contribute to loss of amenity to the adjoining premises.

Whilst I accept that the SEPP provides for greater building floor area in terms of floor space ratio, I am not satisfied that the floor space has been appropriately distributed across the site. The concentration of built form on the Queensbury Road allotment results in unreasonable amenity impacts to the adjoining properties. I agree with Mr Turrisi that the lack of articulation of the building along the side boundaries, particularly adjacent to No 10, and the linkage of the existing building to the elongated, new wing, for a length in excess of 48 m, creates a walling effect to that property. All of that length is two storeys and, at the lift/stairwell, it is the equivalent height of a 3 storey building.

Finally, roof terraces are not characteristic in the area, which has predominantly pitched roofs. The reliance on the rooftop terrace to provide landscaped area is further demonstration that the desirable elements of the location i.e. the ground level, vegetated backyard spaces and open areas are not recognised in the design and the planting proposed is not considered to be in sympathy with other planting in the streetscape. The linkage of the existing and facility necessitates the removal of a significant tree recognised to be of high retention value.

Given the scale of the proposed building, landscaping is an important consideration in its design to screen and minimise the impact of the building from adjoining properties. The minimal side boundary setbacks and the need to provide pathways at critical locations to service fire egress means that narrow areas are available and they do not provide for substantial planting. I do not agree with Mr Young that the planter area adjacent to the 'link' structure is of sufficient width to allow for planting to render the bulk and scale of that structure satisfactory.

I consider the proposed setback to Queensbury Road is appropriate.

These conclusions mean, that in accordance with the provisions of clause 32 of the SEPP, consent cannot be granted and the application must fail.

I turn to the development standard of site width and, having considered the evidence and had the benefit of a site view, I am of the opinion that the site has two frontages, one to Hawk St/Philip Lane and the other to Queensbury Road. Accordingly, the provisions of clause 40(3) of the SEPP apply. This finding is consistent to that of Bly C in Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014 where, at [53] the Commissioner states:

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.

For similar reasons to those which lead me to the conclusion that the design of the development is not appropriate, I conclude that the objection to the lot width development standard should not be allowed. The proximity of a large, bulky building in close proximity to side boundaries for the length of the site with minimal opportunities to provide substantial landscaping demonstrates that the development as designed is not suited to a narrow site. Having regard to the principles in Wehbe, I agree with Mr Turrisi that the objectives of the control are not met and accept his view that the provisions of clause 33 of the SEPP inform those objectives.

Whilst I accept that the objects of the Act would be achieved through the extension of the nursing home, it has to be done in an orderly way without having adverse environmental impacts.

If I am wrong and the Queensbury Road property does not have a "frontage", the application cannot be approved due to the failure to address clause 32 of the SEPP, despite the issue of the development standard. That is because the design of the proposed development does not have adequate regard to the design principles contained in the SEPP.

It is apparent that there is a need for additional beds in the location however, a more appropriately designed building would be required to meet this requirement. It is not a matter of deleting balconies of changing plant species, a major re-work of the proposal is necessary and consideration of either including additional land or relocating building bulk across the site should be given.

The Orders of the Court are:

(1) The appeal is dismissed;

(2) Development application 10DA-76:3 which proposed alterations and additions to the existing residential care facility including new two storey extension and consolidation of the site is refused consent; and

(3) The Exhibits, other than Exhibits A, C and 1 are returned.

____________________

Sue Morris

Commissioner of the Court

*********

Decision last updated: 03 August 2012

Actions

Download as PDF Download as Word Document

Citations

Oreison Pty Ltd v Hurstville City Council [2012] NSWLEC 1210

Most Recent Citation

Jiang v City of Ryde Council [2020] NSWLEC 1378

Cases Citing This Decision

1

Jiang v City of Ryde Council [2020] NSWLEC 1378

Cases Cited

3

Statutory Material Cited

5

Wehbe v Pittwater Council [2007] NSWLEC 827

Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41

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

Medium Neutral Citation:	Oreison Pty Ltd v Hurstville City Council [2012] NSWLEC 1210
Hearing dates:	25-26 July 2012
Decision date:	03 August 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Residential care facility, impacts on adjoining properties, whether development has adequate regard to design principles, whether SEPP 1 objection is required
Legislation Cited:	Environmental Planning and Assessment Act 1979; Hurstville Local Environmental Plan 1994; State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004; State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; State Environmental Planning Policy No 1- Development Standards
Cases Cited:	Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014 Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41; Wehbe v Pittwater Council [2007] NSWLEC 827;
Texts Cited:	Development Control Plan No. 1 - Hurstville LGA
Category:	Principal judgment
Parties:	Oreison Pty Limited (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel Mr M Wright (Applicant) Solicitors Mr C Gough Storey & Gough Lawyers (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	10203 of 2012