RSL Care RDNS Limited v Tweed Shire Council

[2018] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:	RSL Care RDNS Limited v Tweed Shire Council [2018] NSWLEC 1616
Hearing dates:	31 October 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	(1)   Leave is granted to the Applicant to rely upon amended plans as set out in condition 1 of Annexure “A”. (2) The Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3)   The appeal is upheld. (4)   Development Application No. DA17/0084 for a three storey residential care facility (seniors housing) and ancillary facilities at 125-128 Leisure Drive, Banora Point is approved subject to the conditions set out in Annexure “A”. (5)   The Exhibits are returned other than Exhibits A, C and 2.
Catchwords:	DEVELOPMENT APPLICATION: consent orders – final stage of existing seniors housing development – residential care facility – amenity impacts – resident objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 65– Design Quality of Residential Apartment Development Tweed Local Environmental Plan 2014
Texts Cited:	Apartment Design Guide Practice Note - Class 1 Development Appeals
Category:	Principal judgment
Parties:	RSL Care RDNS Limited (Applicant) Tweed Shire Council (Respondent)
Representation:	Solicitors: C McFadzean, Swaab Attorneys (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/312158
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal, lodged pursuant to the provisions of then s 97, now s 8.7 of the Environmental Planning and Assessment Act1979 (the EPA Act), comes before the Court for consent orders. It relates to the refusal by Tweed Shire Council (the Council) of Development Application DA17/0084 (the application) for seniors housing. The application comprises Stage 6 of an existing seniors housing development, known as the Darlington Retirement Village (Darlington Village or the village), situated at 125-128 Leisure Drive, Banora Point (the site).

2. Stage 6 is the last stage of development of Darlington Village with all other stages completed. The village currently contains 96 independent living units (being individual self-care dwellings) and 90 residential aged care (RAC) rooms with associated facilities across a series of centrally located buildings.

3. In the original master plan for the site, Stage 6 was proposed as a single storey building accommodating 30 RAC rooms. The new Stage 6, as refused by the Council, comprised a 3-storey building with 33 RAC rooms on the ground floor (15 special care dementia rooms and 18 general care rooms) and 36 self-care units spread across Levels 1 and 2. Ancillary facilities proposed included a health and well-being centre, dining rooms, and a café for residents, staff and visitors. Additional parking was also proposed as were modifications to the internal access arrangements and landscaping. Approval was also sought to modify boundaries between the existing lots comprising the village.

4. The application was lodged and assessed by the Council under the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP-SL), State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and the Tweed Local Environmental Plan 2014 (the LEP).

5. Prior to determining the application, the Council advertised the proposal and received 28 objections, all from existing residents of Darlington Village. Concerns were raised in terms of the building’s height, the design being out of character with the existing village, loss of amenity including overshadowing, privacy and noise, the proposed setbacks, additional strain on on-site facilities (such as the community hall and bus service), possible flooding implications, and car parking. The proposal to convert the existing 11m wide two-way village road (the internal circuit road) into a one-way system with parking was also opposed. This was primarily because many of the residents with mobility constraints use the road for walking or assisted access given the limitations of using the footpath and the low traffic volumes on the road.

6. The Council refused the application in September 2017 and raised the following contentions (in summary):

1. Overdevelopment - the proposal is too dense and excessive in terms of height and scale; has inadequate setbacks to adjoining properties; relies on the use of shared facilities on an adjoining lot; has insufficient landscaping; and will have an overbearing visual impact when viewed from the low density existing dwellings in the village.

2. Character – the height, bulk and scale is out of character with the existing development in the village with an inappropriate scale transition to adjoining lower rise dwellings. As a result, the building would be visually overwhelming and intrusive and would not integrate with the existing buildings within the village.

3. SEPP 65 – the development was contrary to design principles contained in SEPP 65 and the provisions of the Apartment Design Guide (ADG) which seek to provide a bulk and scale appropriate to the area’s existing and desired future character. Further, the density proposed has external and internal amenity impacts including inadequate cross ventilation, sunlight, landscaping, and communal open space. The distance to facilities also requires elderly frail and disabled residents to walk from a distant parking area to dwellings.

4. Landscaping – was inadequate and would not provide reasonable amenity for future residents.

5. Amenity – there would be unacceptable internal and external amenity impacts in terms of sunlight to living and private open spaces with a number of units receiving inadequate sunlight and visual and acoustic privacy impacts arising from inadequate building separation.

6. Access and parking – changes to the internal circuit road include the removal of half the width of this road which is used by residents as a flat exercise circuit within the existing village. The changes to this road will therefore have adverse safety impacts. There is also an over-reliance on the existing car park which is distant from proposed rooms. No specifically allocated parking is provided which will result in competition for parking.

7. SEPP-SL – the development does not comply with the SEPP-SL in that the self-care dwellings are not designed having regard to the site’s context or the impacts on neighbours. The new building will not contribute to the quality or identity of the village or maintain reasonable neighbourhood amenity.

8. Public interest – the development should be refused having regard to the matters raised in submissions which largely reflect the contentions raised by the Council.

7. The Council also contended there was a lack of information on a range of matters including solar access, shared facilities, the café use, and encroachment over boundaries. Furthermore, the application was accompanied by an inadequate plan of management and no BASIX certificate had been provided.

8. The appeal was subject to mandatory conciliation in March and April, 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act1979 (the LEC Act). As no agreement could be reached, the conciliation was terminated and the matter set down for hearing.

9. However, prior to the hearing, the parties agreed to enter into consent orders based on the amendments made to the proposal, the provision of additional information, and the proposed conditions of consent which, collectively, addressed the issues raised by the Council.

10. The primary amendment to the application was the decision by the applicant to convert the self-care units on the upper two levels of the building to RAC rooms, being a ‘residential care facility’ as defined in the SEPP-SL. As a consequence, many of the design requirements under the SEPP-SL and SEPP 65 which apply to self-care dwellings do not apply.

11. In addition, a number of other amendments were undertaken to address issues raised by the Council and/or existing village residents. This included lowering the height of the development to comply with the maximum LEP height limit for the site, albeit a 3-storey building was still proposed, and increasing setbacks and landscaping. The café was also deleted.

12. In considering the consent orders request, the Court's Practice Note - Class 1 Development Appeals (paragraph 99) provides relevantly:

“36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.”

13. The Council provided the Court with documentation confirming that the objectors had received notification of the proposed consent orders, including the conditions of consent, and were provided the opportunity to be heard at the hearing as required by the Practice Note.

14. In this regard, the consent orders’ hearing commenced onsite with the parties and their experts in attendance to hear from six existing village residents and to view the proposed site, the internal circuit road and car parks, and the context and siting of existing village development.

Objector Concerns

15. Ms Lindsay is a 92 year old resident of the village and the secretary of the Darlington Village Residents’ Committee (the Residents’ Committee). In summary, she advised the Court that:

• The existing self-care dwellings house 120 residents with an average age of 86.

• Trust in the RSL Care brand was foremost in the minds of many residents when deciding to buy into the village. That trust is being violated by Stage 6 as now proposed which bears no relationship to the single storey building approved as part of the 2003 development application which residents had regard to when they entered into contracts with RSL Care to live in the village.

• Furthermore, the documentation provided by management to incoming residents requires that residents must not use land in a way that adversely affects another property or interferes with the peaceful enjoyment of the village. RSL Care would themselves be in breach of such a requirement, and the claims in their marketing material to live in a ‘peaceful…slice of paradise’, in undertaking this development.

• Whilst the application, as amended, may now legally and technically ‘tick boxes’ it is still of an architectural design, bulk and scale totally out of keeping with anything else on the site.

• RSL Care should consider a redesign to confine the building to 2 storeys to be of a similar bulk and scale to the western end of the existing RAC building, thus minimising impacts to residents.

• The Court should impose a condition that parking be allocated between staff and visitors given the shortage of visitor parking with staff using the majority of available parking spaces.

• A further condition should vary construction hours to start later having regard to the age of surrounding residents.

• The original conditions of consent included a condition to minimise noise during construction. This condition appears to have been omitted from the proposed conditions and should be reinstated.

16. A further five village residents spoke and reiterated many of Ms Lindsay’s concerns and raised related concerns. These included:

1. A breach of trust by RSL Care in indicating to incoming residents that the final stage of development (Stage 6), which is currently a vacant grassed site, would be developed as a single storey mirror image of what existed at the opposite end of the central core building as shown on the master plan. Also a lack of care by RSL Care for the well-being of their existing residents despite their stated motto to the contrary.

2. What is proposed is of a scale and height out of character with the village and too close to existing residents’ dwellings. It will reduce the value of existing residents’ dwellings, particularly those in close proximity.

3. Inadequate parking and staff use of available existing parking when visitor parking is required not only for visitors but also for carers and visiting therapists. The additional traffic will also result in increased danger for residents who frequently use the internal circuit road rather than the footpath.

4. The narrowness of the internal circuit road to accommodate additional or any on-street parking which in any event is not allowed by management and should not be permitted.

5. No landscaping or parking buffer between existing self-care dwellings in the village and the proposed 3 storey building.

6. The adverse impacts to residents adjoining the site during and post construction, including noise intrusion, dust, a lack of privacy (particularly from the upper level balconies), and overshadowing. This has caused a great deal of stress to a number of residents.

7. The amendments undertaken to the proposal since the conciliation are largely inconsequential in terms of addressing residents’ concerns.

17. A number of resident objectors live immediately adjoining the site of the proposed development and the Court and parties visited those dwellings.

The site and surrounds

18. In the Statement of Facts and Contentions (SFC) lodged by the Council with the Court (Exhibit 2), it indicates that the site is part of an approved 4 lot community subdivision. This is indicated in Figure 1 of the SFC reproduced below, noting however, that the internal circuit road is in fact Lot 1 and the central buildings marked as being on Lot 1 are actually on Lot 4. The site of the proposed Stage 6 development is correctly shown (grassed) as Lot 3.

19. The area of Lot 3 is 2,601m². The site is currently vacant. It is adjoined to the west, north and south by the internal (private) circuit road which is part of the common property comprising Lot 1. Lot 1 also includes 3 car parking areas with together contain some 74 bays. Lot 3 is adjoined by Lot 4 to the east. Lot 4 contains 3 buildings: a single storey administration building; a 2 storey building (which appears in part as 3 storeys) containing existing RAC rooms; and a third single storey building (the eastern wing) containing 30 RAC rooms. It is the future western wing, which is indicated on the site master plan (and was expected by existing residents) to mirror the height and design of the existing eastern wing, which is now the subject of the appeal. Lot 2 comprises the balance of the subdivision and contains 96 low scale self-care dwellings.

20. The general locality is characterised by low density development and a range of commercial and educational facilities, including shops, thus meeting the accessible facilities’ provisions for seniors housing of the SEPP-SL.

21. Other relevant considerations of the SEPP-SL are detailed below.

Statutory and planning considerations

22. Seniors living is permissible with consent in the Residential R3 zone in which the site is located under the LEP. Residential flat buildings (RFBs) are also permissible in the zone with consent as a use not specifically prohibited. The maximum permissible height of development in the LEP is 13.6m.

23. The relevant development provisions are those contained in the SEPP-SL. Under that SEPP, a ‘residential care facility’ is defined at clause 11 as follows:

In this Policy, a residential care facility is residential accommodation for seniors or people with a disability that includes:

(a) meals and cleaning services, and

(b) personal care or nursing care, or both, and

(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,

not being a dwelling, hostel, hospital or psychiatric facility.

Note. The Aged Care Act 1997 of the Commonwealth requires residential care facilities to which that Act applies to meet certain requirements.

24. Under the SEPP-SL, there are general development standards for all seniors living in terms of lot size and configuration and maximum building height. The site meets the minimum lot size and frontage requirements and, as amended, the development complies with the maximum height permissible by the LEP. The SEPP does not have a height control in zones where RFBs are permitted, such as in the R3 zone in which the site is situated.

25. Unlike self-care accommodation, development for a residential care facility, as the application now proposes, does not need to comply with the requirements of SEPP 65 or the ADG. There are no specific design requirements in the SEPP-SL for residential care facilities.

26. As required by the SEPP-SL, at cl 26, the development has access to a range of facilities based on the evidence to the Court. Furthermore, the site meets the SEPP-SL requirements at cl 27 in terms of not being bush fire prone land and the development will be connected to water and sewer through a proposed condition of consent, as required by cl 28.

27. The SEPP-SL also requires, at cl 29(2), that the consent authority consider certain requirements which precludes consent being granted unless the consent authority under cl 25(5)(b)(i), (iii) and (v):

(b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria:

(i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development,

…

(iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision,

…

(v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development, …

28. On the basis of the evidence before the Court, the applicant met the requirements for a site analysis at cl 30 of the SEPP-SL noting the development is sited within an approved seniors living facility. Of particular relevance, the application included an assessment of overshadowing of adjoining properties and of the impacts on neighbouring buildings including in terms of privacy.

29. Consent can also not be granted unless regard is had to the design principles under Division 2 of the SEPP-SL. In essence, and of relevance to the application, these principles require the development to maintain reasonable neighbourhood amenity and character including by providing appropriate setbacks to reduce bulk and overshadowing and having a height compatible in scale with adjacent development.

30. Division 2 also requires that the development consider the visual and acoustic privacy of neighbours through appropriate site planning and by use of screening devices and landscaping. Further, the design should ensure adequate daylight to the main living areas and private open spaces of neighbours and reduce energy use. There are also design principles with regard to stormwater, crime prevention, waste management, and to ensure safe accessibility for pedestrians and motorists.

28. The consent authority can not refuse consent to a development under cl 48 of the SEPP-SL on the basis of certain standards if the minimum of those standards is met. The standards relevant to this application relate to minimum landscaping and car parking provision.

Expert evidence

32. Expert evidence was provided to the Court from Mr Vescio, a planner for the Council and Mr Haynes, a planner for the applicant (the experts). A Joint Expert Report (Exhibit 5) and an addendum to this report (Exhibit 6) were prepared by the experts and filed with the Court addressing the Council’s contentions and those raised in submissions to the application.

33. The experts considered that the application, as amended and with the conditions of consent proposed, met the objectives and provisions of the SEPP-SL, and of the LEP to the extent that the LEP provisions could be applied given the overriding provisions of the SEPP-SL.

34. In this regard, the experts agreed that, given the application is now an expansion of an existing residential care facility, sharing the facilities located on Lot 4 is not unreasonable as there is adequate capacity for this to occur. Conditions of consent also require a management plan outlining how the facility will operate in tandem with the existing facility as well as an easement to deal with development across lot boundaries.

35. As required by the SEPP-SL, a condition of consent also requires there be no self-care dwellings. On this basis, in the opinion of the experts, the amenity of the future occupants of the new RAC rooms will be ‘more than satisfactory’ in terms of private and communal open space and access to required facilities.

36. Given the change to only RAC rooms, the Council contentions with the design requirements of SEPP 65 could no longer be applied. This is because RAC rooms are not defined as dwellings. However, notwithstanding that SEPP 65 and the ADG no longer apply, the experts used their provisions as a reasonable guide to assess the development given the height proposed.

37. It was accepted by the parties that any new large building on what is currently a vacant grassed open space area would have impacts. However, given the reduced height, articulation and modulation provided in the elevations, the contemporary materials and finishes proposed, and the soft and increased landscaping adjoining, it was considered by the experts that the visual impacts were sufficiently mitigated and would not be so overwhelming or intrusive as to make the development unacceptable.

38. The experts did acknowledge that there would be some adverse visual impacts when the development is viewed from low scale surrounding dwellings. However, the reduction in the overall height of the roofline adjacent to the internal circuit road, along with the proposed articulation and increased setbacks and landscaping, were collectively considered to make the visual impacts on the existing adjoining development acceptable.

39. This conclusion was partly on the basis that the existing built form in the village is already not uniform ranging from effectively single storey self-care dwellings to the existing aged care facility which in part is higher than the proposed development.

40. As there is no distinct architectural style in the village, the experts considered that the development, comprising a contemporary proposal with a compliant height and built form articulation, would adequately integrate with existing development, arguing it could also provide a positive benchmark for any future upgrading of the existing facility. Further, the proposed development would largely not be visible from the public domain so no issues of streetscape or locality character consistency arise.

41. In terms of overdevelopment generally, the experts agreed that the amended development complied with the LEP height limit and that the highest components of the building would be adequately screened from existing adjoining development and the circuit link road. It was also noted that the proposed height would be of a lower height than the highest elements of the adjoining building on Lot 4.

42. In oral evidence, Mr Haynes advised that, whilst the maximum height proposed was 13m, this was only to accommodate plant and the lift over-run. The height of the bulk of the building adjoining the internal circuit road and opposite the nearest self-care dwellings had been reduced to a maximum of 10.5m. The roof element was lowered some 1.5m to be a maximum of 11.5m. Fixed privacy screens were also proposed to upper level balconies.

43. In addition, setbacks to the circuit road were increased and landscaping extended to the kerb and had a minimum width of 1.5m and an average width onsite of some 3.5m and, including kerbside planting, 4-4.5m. Landscaping would also include deep soil planting enabling trees to be planted. Accordingly, the experts agreed that the front setback was adequate given it provided the opportunity for deep soil landscaping along the perimeter. The extent of such landscaping had been increased in the amended proposal to meet the minimum required landscaped area under cl 48 of the SEPP-SL and therefore could not be a basis for refusal.

44. In this regard, the experts agreed that different landscaping provisions applied to residential care facilities and that, given the proposal was now an extension of the adjoining residential care facility, partial reliance on the existing landscaped area on Lot 4 was not unreasonable. Given the landscaped area proposed complies with the provisions of the SEPP-SL, it must be considered adequate in terms of providing reasonable amenity for future occupants.

45. Nevertheless, Mr Vescio advised the Court that the Council would be seeking at least 4 medium sized canopy trees being provided in the deep soil zone and a condition of consent requires Council approval to an updated landscaping plan.

46. In terms of setbacks, the experts also agreed that the 12.47 m separation of the closest balcony on the western elevation of the building to the external wall of the nearest existing dwelling would be satisfactory. In this regard, a minimum separation distance between habitable rooms of 12m, specified under the ADG for RFB development, is met.

47. The experts also considered that the transition between the development and the lower rise dwellings in the village was acceptable given: the separation distance provided; the height, bulk and scale of the adjoining RAC building; and the deep soil perimeter landscaping proposed. Further, the amended development complies with the scale of development anticipated in the zone and by the controls which allow a height of up to 13.6m, with the highest elements proposed at some 13m but the majority of the building even lower at some 2.6m below the permissible maximum height under the LEP.

48. In terms of amenity impacts, such as solar access and visual and acoustic privacy, the experts agreed that there are no solar access standards applicable to the new RAC rooms under the SEPP-SL. Further, the detailed solar access analysis prepared illustrated that the amended proposal, which included increasing the upper level setbacks and lowering the height, would ensure adequate daylight to neighbouring properties such that cl 35 of the SEPP-SL is satisfied.

49. In this regard, at least 3 hours of solar access will be available to the living areas of the most affected nearest dwelling between 9am and 3pm in mid-winter and at least 2.5 hours to that dwelling’s private open space during the same period.

50. The experts considered the amended design, which provides privacy screens to balconies and increased setbacks, adequately addressed their privacy concerns in conjunction with the proposed conditions of consent. In this regard it was noted that the future users of the facility are less likely to frequently occupy or use the private open space which would further mitigate any potential privacy impacts.

51. The experts also agreed that, whilst the design is different than that of the existing facilities, it is a contemporary proposal which would not adversely detract from the visual qualities of the existing character of the village. It would have minimal exposure to any public places given its location within the village.

52. As the internal circuit road was subsequently agreed not to be changed to become one way, concern with this aspect of the development was no longer raised.

53. In terms of parking, the Council advised that a surplus of parking relative to SEPP-SL requirements already exists on site. The conversion of self-care rooms to RAC rooms significantly reduced the parking requirement so that an over provision would continue to exit.

54. The experts concluded that parking could be utilised in tandem with the existing facility. Accordingly, parking provision could not be a basis for refusal under cl 48 of the SEPP-SL. It was also noted that there is no requirement to specifically allocate parking under the provisions of the SEPP-SL.

55. Finally, the Council indicated that the existing services and facilities were adequate to cater for the new occupants and that there would be no flooding issues albeit a Flood Evacuation Management Plan had been submitted with the application.

56. A condition of consent also requires that the drainage system is to be designed to ensure there is no additional ponding or runoff of stormwater impacting neighbouring properties.

57. In summary, the experts agreed that the primary issues raised by residents had been addressed by the amended application given the limitations imposed by conversion of the upper level rooms to RAC rooms and subject to a number of conditions being imposed on the consent. These conditions include an adequate plan of management to deal with the sharing of facilities. The café had been deleted and was therefore no longer a contention and, as the application was converted to a solely residential care facility, there was not a requirement for a BASIX certificate. Finally, all of the insufficient information contentions of the Council had been addressed.

Responding to Objector Concerns

58. Notwithstanding the findings and extensive evidence of the experts as to the acceptability of the proposed development, which I have taken the time to summarise, the Court is required to consider whether or not the specific issues raised by the objectors have been adequately addressed. My findings in this regard follow.

Height, bulk and scale

59. Whilst the application remains for a 3 storey building, on the basis of the amendments to the application, the expert evidence and for the reasons that follow, I consider the height, bulk and scale as now proposed to be acceptable in terms of responding to the issues raised by existing residents of Darlington Village and having regard to all of the circumstances of the application.

60. In this regard, I accept that Stage 6 was originally approved as a single storey building flanking the central taller RAC building as a mirror image of the building to the east of the RAC building, and was the form of development village residents expected would occur on the site.

61. However, there is nothing precluding the applicant, RSL Care, lodging an application for an alternative building given contemporary requirements and under current planning controls. Those controls have altered since the original consent was granted and now permit a development higher than what is proposed. However, such a development must still be designed, developed and assessed having regard to the impacts such a building causes.

62. Those impacts have been considered by both the applicant and the Council, and now by the Court. In response to concerns raised by existing residents and the Council, the application was amended albeit I accept not materially in the opinion of existing residents. Those amendments include a lowering of the building so that the majority is some 2m lower than the height controls permit, increasing the setbacks and perimeter landscaping, and providing privacy screens to balconies, to address concerns in terms of visual impact, privacy and overshadowing in particular.

63. The lowering of the proposed building is such that it is below the maximum height of the adjoining residential care facility and complies with the LEP height control for the site albeit I accept that the adjoining building presents predominantly as not more than 2 storeys. However, I agree with the planning experts that, whilst what is proposed will present as a different form, it will not be out of context with other taller buildings on the site.

64. I accept, as did the parties, that any new large building on what is currently a vacant grassed open space area will have impacts. However, articulation and modulation is proposed as are contemporary materials. The visual impact will also be softened by increased setbacks and perimeter landscaping. There are also no streetscape or locality impacts as the development is internal to the existing Darlington Village.

65. The applicant’s expert, in response to a question from the Court as to whether the development could be lowered to 2 storeys, advised that the applicant was seeking to provide as many additional RAC rooms as could be accommodated, and of a larger size than other RAC rooms in the village. This is having regard to what is permitted by the controls but also having regard to the impacts on existing facilities and residents. Accordingly, approval to a 3 storey building is sought.

66. I have to accept that advice given RSL Care is an aged care provider and the site is situated within an approved seniors living development operated by them.

67. I also note that the application cannot be refused on the grounds of the amount of landscaping provided given the SEPP-SL required minimum provision at cl 4.8 is met. I also note that the Council has indicated they will require at least some trees to be planted in the deep soil area.

68. On balance, I therefore accept the expert evidence that the impacts have been reasonably mitigated to the extent that the building would not be of such a height, bulk or scale as to warrant refusal in the circumstances.

69. The amenity impacts raised by existing residents are however, considered in more detail below.

Amenity impacts

70. The applicant undertook an overshadowing assessment which demonstrated that the solar access to the living rooms and private open spaces of adjoining dwellings, whilst impacted, will still generally comply with the solar access provision that would be required under SEPP 65. This is in part as a consequence of the lowering of the building and the increased setbacks.

71. Given there are no specific solar access requirements associated with the SEPP-SL either for the future occupants of the RAC rooms or for neighbours, I consider that the solar access outcomes of this development have been reasonably considered and addressed having particular regard to the impacts on the nearest neighbouring dwelling to the south.

72. With the conversion of the upper level rooms from self-care dwellings to RAC rooms, and the fixing of privacy louvres to upper level balconies, the impacts in terms of noise and privacy will be substantially reduced relative to the development as originally refused. There is also a condition of consent requiring an acoustic assessment to be undertaken to ensure noise from the upper level communal balconies of the proposed building meet required noise levels at the adjacent dwellings at all times. Based on this requirement and the expert evidence, I am satisfied that the noise and privacy impacts from the building’s use will therefore be acceptable.

73. There are also proposed conditions to deal with noise associated with construction. At the requirement of the Court, the applicant accepted a condition in line with that sought by the Residents’ Committee that no construction could take place prior to 8am that would be audible from the bedrooms of adjacent dwellings. The condition sought by Ms Lindsay to be re-inserted is now in the proposed consent and there is a condition that all reasonable steps be taken to limit noise in the event of any reasonable complaint being made to the Council by neighbours during construction.

74. A detailed Construction Traffic Management Plan is required to deal with the safety of residents and pedestrians during construction. A condition is also proposed that work on the site must be carried out so as to not impact on the neighbourhood including from noise or dust emissions.

75. Given such proposed consent conditions, the planning experts concluded that the development as revised and to be conditioned results in adequate amenity impacts. I have summarised in detail their evidence and accept that evidence.

76. Therefore, on the basis of the information before me, I consider that the amenity issues arising from the development have been appropriately considered by the parties in seeking consent orders for the application as modified. Whilst I am sympathetic to the issues raised by the existing residents, and accept they will be impacted by the proposed development, including during construction and particularly those in close proximity, the development is both permissible by the controls and has been amended having regard to the resident’s objections.

77. I also accept the evidence from the applicant, an aged care provider, that the number of RAC rooms is sought to be maximised in order to meet the demand for such rooms and that the facilities onsite can reasonably accommodate the additional demand from future residents of these rooms.

Internal circuit road and car parking

78. In response to concerns raised by residents, the applicant agreed not to change the width of the internal circuit road or convert it from two-way to one-way. This will enable the road to continue to be used in effect as a low speed shared zone between pedestrians, residents and visitors (including those with mobility restrictions or aids), and vehicular traffic.

79. Further, and in response to issues raised by the residents as well as to a query of the parties raised by the Court, conditions of consent are now proposed which reflect the current management practices of precluding kerbside parking on the internal circuit road.

80. In terms of parking, also in response to a Court query arising from residents’ concerns, the applicant agreed to allocate parking across Darlington Village between staff and visitors, sign post the different areas and limit the amount of parking which could be utilised for staff to 31 bays with more than double that number of bays provided in the village overall. This requirement is to be enforced by a condition of consent and is an improvement on the existing unregulated use, primarily by staff (according to residents), of available parking.

81. There are also conditions of consent imposed to address the safety of residents during construction and to limit onsite parking by construction related vehicles.

82. On the basis of the changes undertaken in response to resident concerns and the proposed conditions of consent, and given the limitations imposed by the SEPP-SL, I consider the proposed access and parking arrangements to be adequate for the development now proposed.

83. This is notwithstanding existing residents consider that the application provides inadequate parking, and accepting that there is a high demand for onsite parking already. As the amount of parking provided onsite meets the required provision under the SEPP-SL, no further parking can be reasonably required nor can the amount or parking provided be a ground for refusal.

Other issues raised by objectors

84. In terms of the loss of faith in RSL Care, and the breach of residents’ trust, whilst I accept this is a concern of existing residents, it is not a matter for the jurisdiction of this Court.

85. Similarly, the potential impact on the value of dwellings within the village is not a matter for this Court’s consideration, albeit I note it may have consequences for RSL Care as well as for the residents who consider their dwelling values may be affected.

Conclusion

86. Ultimately, and notwithstanding the number of resident concerns, there are no substantive grounds on which the Court can refuse consent to this application. The development complies with the required development standards of the SEPP-SL and is below the maximum permissible height under the LEP.

87. In my view, the relevant objections raised by neighbours regarding the proposal have been considered by the parties and are addressed by the amendments made to the proposal to the extent that the relevant planning instruments and merit considerations require.

88. In this regard, I accept that the amendments to the proposal and proposed consent conditions address the Council's original contentions of concern in relation to the application, and the resultant amenity impacts in particular.

89. I am also satisfied that the proposal is consistent with the objectives and statutory controls of the SEPP-SL and of the LEP to the extent that these instruments apply. In this regard, I am also satisfied that the objections have been properly taken into account albeit the application has not been modified as the existing residents would seek.

90. To the extent the Court could reasonably require the conditions of approval to reflect outcomes sought by objectors, those conditions have been imposed. This particularly relates to the hours of construction, managing construction impacts, and allocation of parking.

91. In considering the amended plans and documents and agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and appropriate to grant consent to the proposal, having regard to the whole of the circumstances.

Orders

92. The orders of the Court are:

1. Leave is granted to the Applicant to rely upon amended plans as set out in condition 1 of Annexure “A”.

2. The Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. DA17/0084 for a three storey residential care facility (seniors housing) and ancillary facilities at 125-128 Leisure Drive, Banora Point is approved subject to the conditions set out in Annexure “A”.

5. The Exhibits are returned other than Exhibits A, C and 2.

________________

Jenny Smithson

Commissioner of the Court

Annexure A (133 KB, pdf)

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Decision last updated: 30 November 2018