St Maurice Aged Care Ltd v Blacktown City Council

[2024] NSWLEC 1790

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

St Maurice Aged Care Ltd v Blacktown City Council [2024] NSWLEC 1790

Hearing dates:

2-3 and 24 October 2024; final agreed conditions filed 14 November 2024

Date of orders:

03 December 2024

Decision date:

03 December 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development consent is granted to development application no. DA-23-00720 for demolition works, tree removal and the construction of a seniors living development comprising a 6-storey building including 3 basement levels for car parking, 42 residential aged care rooms comprising 60 beds and 27 independent living units, 56 car spaces, café, medical centre and commercial uses, and landscaping on land at 54-56Kildare Road and 1A Carinya Street, Blacktown, subject to the conditions of consent in Annexure A.

(4)   The exhibits are to be returned following publication of the judgment, except for Exs A-C, E and 4.

Catchwords:

APPEAL – concept development application – seniors living development – consistency with concept plan – motion to rely upon a further set of amended plans and documents – all merit contentions are resolved

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.15(3)

Blacktown Local Environmental Plan 2015, cll 4.3, 4.6

State Environmental Planning Policy (Housing) 2021, ss 87, 93

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

St Maurice Aged Care Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
M Astill (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Clayton Utz (Respondent)

File Number(s):

2023/277149

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 6 December 2017, Blacktown City Council approved a concept DA (DA-17-01674) for a 6-storey mixed use residential and seniors’ development on Lots A and B in DP 445680, and Lot C in DP 445680, otherwise known as 54-56 Kildare Road and 1A Carinya Street, Blacktown (site).

2. On 19 June 2023, St Maurice Aged Care Ltd, commenced these proceedings against the deemed refusal of a development application (DA-23-00720) for the construction of a 7-storey seniors living development on the site.

3. On 2 July 2024, the applicant was granted leave by the Court to rely on an amended application.

4. Specifically, the 2 July 2024 amended DA comprised:

1. demolition of existing residential dwellings on the site;

2. 3-level basement car parking for 56 car spaces;

3. 42 residential aged care (RAC) units, comprising 60 beds;

4. 36 assisted living units (ALU) and independent living units (ILU) residential apartments;

5. ancillary retail and commercial uses including:

1. a wellness centre (with a gross floor area (GFA) of 21m²);

2. a hair salon (with a GFA of 18m²);

3. a cafe (with a GFA of 35m²); and

4. a medical centre (with a GFA of 62.2m²);

6. landscaped areas and communal open space; and

7. driveway access to Carinya Street.

5. Despite the 2 July 2024 amendment, the maximum height of the development at RL 25.44m remained in contravention of the 20m height control in the Blacktown Local Environmental Plan 2015 (LEP). It was also inconsistent with the Concept Approval (DA 17-01674). Noting that the height of the development under the Concept Approval (for 6 not 7 storeys) had already been approved utilising cl 4.6 of the LEP at 22.6m above the 20m height control.

6. The 2 July 2024 amended DA was publicly notified between 5 July and 19 July 2024 and two submissions were received. These objectors raised concerns about the non-compliant height of the building, the increased traffic and parking in an already congested environment and the safety of elderly residents, and the removal of the existing palm tree.

7. The appeal was listed before me for a 2-day hearing on 2 and 3 October 2024 and commenced with a site view and objector evidence. The appeal did not finish in the allocated two days and was adjourned for further hearing on 24 October 2024.

The final amended DA

8. At the resumed hearing, the applicant was granted leave to rely upon a further amended application (October 2024 amended application) subject to the payment of the Council’s cost in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EPA Act).

9. These latest changes incorporated the recommendations of the following experts:

• Mr Adam Coburn for the applicant, and

• Ms Judy Clark and Ms Karla Castellanos, for the Council

in relation to planning and urban design.

10. The October 2024 amendments proposed the removal of the top habitable level 6, and the construction of a 6-storey seniors living development comprising:

1. three basement levels for car parking - containing 56 car spaces, motorcycle/bicycle parking facilities, an ambulance bay and loading bay and a new garage door at the driveway frontage;

2. 42 ALUs containing 60 beds;

3. 27 ILAs containing 36 beds;

4. a covered rooftop communal outdoor area and an open communal outdoor area at the northern end of Level 1;

5. internal communal areas, including lounges, a dining room and living room;

6. staff facilities;

7. ancillary facilities, including a commercial kitchen, retail and commercial uses (comprising a wellness centre, café and medical centre); and

8. embellished landscaping with greater deep soil planting opportunity and civil works.

11. An updated cl 4.6 written request, dated 17 October 2024 was filed to address the much-reduced height non-compliance generated by the lift core and a small section of the building, together with an updated Design Verification Statement prepared by McNally Architects dated 21 October 2024.

The contentions

12. The Council is now satisfied that the merit contentions raised in the Amended Statement of Facts and Contentions have been resolved by the most recent amendments and the imposition of the agreed conditions of consent.

13. In that regard, it is to be noted that the removal of the habitable level on Level 6 and the replanning of the lift core at the northern end and the stair adjustment has addressed the Council’s urban design expert, Ms Castellanos' concern about the dominance of the development on this prominent corner site. In short, there were four levels above the podium, and now there is only three levels - the habitable level on Level 6 has been removed. Now, there is only the lift, which provides accessible travel to the roof, and then likewise, on the south elevation. While the adjustable louvres, as shown in the plan, remain the same, they are at the lower level.

14. The latest amendments have also picked up the changes recommended in the joint reports, whereby the balcony off Unit 15 now faces towards the western boundary with a 1.8m privacy screen on the southern side to avoid overlooking into the adjoining townhouses. And, those same changes are reflected again at the upper levels.

15. An automatic gate has been introduced into the front setback, which will obviously create a sense of building rather than a “black hole” as Ms Castellanos, describes the original design.

16. There have been some changes to the paving and landscaping in the front setback. The front setback in front of the lounge area, again, is now just pathways with deep soil and less hard paving. There is also change on the northern end where it has been redesigned with a new location of a riser behind the lift core. The communal open space now has far less hard paving, particularly in the area of deep soil in the western corner. The deck has been removed from the café on the street frontage to create more landscaping in that area.

17. There has also been a simplification of the materials used above the podium level, the darker coloured material and then the lighter rendered concrete means that it will be abundantly clear from the east elevation that there are three levels above the podium, rather than four.

18. The Council had raised no traffic or parking issues, the consequence of the additional level of basement, albeit with one less level of accommodation, means that concerns about parking in the locality, expressed by the resident objector are accepted to be satisfactorily resolved by the amended DA.

19. Finally, and importantly, the Council now accepts the experts’ assessment that the proposed development is now consistent with the concept plan approval. Noting, that the concept plan was silent as to the basement configuration and the current plans have now addressed that aspect of the development satisfactorily.

The cl 4.6 written request

20. Turning now to the breach of the height control in cl 4.3 of the LEP, and the applicant’s amended cl 4.6 request to vary this standard. Relevantly, the Court on appeal exercising the functions of the consent authority, must be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out…

21. The first precondition in cl 4.6(4)(a)(i) requires the applicant's written request justify the contravention of the development standard, by adequately addressing the matters required to be demonstrated by cl 4.6(3)(a) and (b), being:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

22. For convenience, the objectives of the height standard in cl 4.3 and the R4 zone of the LEP are reproduced below:

4.3 Height of buildings

(1) The objectives of this clause are as follows—

(a) to minimise the visual impact, loss of privacy and loss of solar access to surrounding development and the adjoining public domain from buildings,

(b) to ensure that buildings are compatible with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown,

(c) to define focal points for denser development in locations that are well serviced by public transport, retail and commercial activities,

(d) to ensure that sufficient space is available for development for retail, commercial and residential uses,

(e) to establish an appropriate interface between centres, adjoining lower density residential zones and public spaces.

Zone R4 High Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

• To permit residential flat buildings in locations close to public transport hubs and centres.

23. As identified, the amended proposal exceeds the 20m height limit in cl 4.3(2) of the LEP, with a maximum building height at 24.59m. The largest extent of the height variation being the circulation core and lift overrun, with the remainder of the height variation being the rooftop communal areas and associated pergola structure, as well as a small portion of the parapet of the building on the northern façade (refer to Figs 5, 6, 7 and 8 of the written request pp 72-74 for the images denoting the areas and sizes affected by the proposed building height variations).

24. The written request relies on the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 to justify the breach of the height standard, and for the reasons set out in the written request, I am satisfied that the development is consistent with objectives (a)-(e) of the height standard. Therefore, it follows that compliance with that standard is unreasonable and unnecessary in the circumstances of this case.

25. In forming that assessment, it is to be noted that development in the vicinity of the site is highly diversified, in terms of age, typology, usage, height bulk and scale and that the area is transitioning from low to high-density residential development in accordance with the current R4 zone. As amended, the proposal now minimises the visual impact, loss of privacy and loss of solar access to surrounding development and the adjoining public domain. Moreover, I am satisfied having observed the site in context that the proposed building is compatible with the height, bulk and scale of the surrounding residential localities and commercial centres within the City of Blacktown (see Fig 9 in the written request).

26. Given the site’s orientation overshadowing of the property to the south, the adjoining multi dwelling housing development, is unavoidable. However, I am satisfied for the reasons stated in the request that the proposed design now minimises the amount of overshadowing to compliant levels based on the solar analysis (referred to in the written request and shown on the architectural plans). Moreover, I accept that the shadow generated by the current design and orientation of the development will be cast relatively quickly across the northern side of that adjoining property and that sufficient levels of solar access will be provided to both the living and private open space areas of the adjoining dwellings at 1-5 Carinya Avenue.

27. Relevantly, as the written request records, the part of the building that causes the largest height breaches (the roof terrace and vertical core) are placed in such a way that any additional shadow being cast will be self-internalised within the proposed building’s roof area until at least mid-afternoon. It is also to be noted that the sites on the southeast (opposite the site) will not be subject to overshadowing until around mid-afternoon on Jun 21, and that is acceptable.

28. The setbacks of balconies/windows on the western side of the building are also sufficient to avoid unreasonable impacts to that side of the building. South-facing windows are minimised where possible and otherwise treated to avoid impacts. All of the elements comply with the ADG requirements.

29. Importantly, I accept for the reasons submitted that the development will present to the street in a manner that is consistent with other R4 zone sites that have transitioned to high-density residential development.

30. With respect to objective (c) of the height standard (to define focal points for denser development in locations that are well serviced by public transport, retail and commercial activities), I accept that the site is situated in an accessible area proximate to facilities and services for the future residents of the site. Denser development that is well serviced by public transport, retail and individual commercial activities.

31. In addition to the residential (the assisted and independent living) parts of the building, the development will provide for a variety of non-residential uses (cafes and medical centre) at street level. As such, the development will establish an appropriate interface between centres, adjoining lower density residential zones and public spaces. For those reasons, I accept that the development achieves objectives (d) and (e)).

32. Relevantly, the concept approval approved a development height of 22.6m and a development of 6 storeys. The approved cl 4.6 request for the concept approval related to the height exceedance generated by the lift overrun (1.6m exceedance), a covered walkway (0.6m exceedance) and part of the rooftop pergola (0.8m exceeded). The maximum exceedance for the approved DA is a similar percentage (8%) to that of the proposed development (8.2%) accepting that the development qualifies for the 3.8m height bonus, and also relating to the lift overrun.

33. The Council now accepts that the cl 4.6 request offers sufficient environmental planning grounds to support the height breach in the circumstances of this case.

Provision for additional height provided by the State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

34. As the cl 4.6 request records over and above the 20m building height standard applying to the site pursuant to cl 4.3(2) of the LEP, s 87(2)(c) of the Housing SEPP affords an additional 3.8m building height for seniors living development that is provided in the form of a residential flat building. Whilst there is some debate between Council and the proponent in respect to the strict applicability of s 87(2)(c), due to the absence of an FSR on this site, it is clear that the intention of this provision is to provide for an additional storey and/or additional height for seniors housing development when located within a zone that permits residential flat buildings. Accepting this, the effective height standard for this site and development would be 23.8m — whilst still non-compliant with this height standard, sufficient weight should be at least applied in the circumstances of this case, in that it is clear that s 87 of the SEPP is intending to assist seniors housing developments to achieve greater height, and I accept that this is a relevant consideration as part of this cl 4.6 variation.

Provision of additional seniors living in a suitable location

35. As the request identifies, the Housing SEPP seeks to provide additional building height provisions for increased residential density on applicable sites, and developments. The provision of additional beds by this development - to meet a likely shortfall of seniors housing within the Blacktown LGA, in a highly appropriate location for higher-density seniors living support an approval of the height exceedance in this case.

36. Put simply, the development is not only proximate to the Blacktown local centre; it is also within an accessible area, that also provides suitable access arrangements to services as defined by s 93(5) of the Housing SEPP.

37. Accordingly, I accept that this provision of additional accommodation by permitting the proposed variation will result in better planning outcomes in this specific instance.

Provision of superior residential amenity and access

38. The design of the development will also provide a range of outdoor communal facilities, including:

• landscaped areas at ground level,

• a first-floor podium terrace on the northern side of the building, and

• the rooftop communal open space area.

39. While the rooftop terrace (and associated access arrangements) will contribute to the largest breaches of the building height development standard, I accept that the provision of the terrace will significantly improve the functionality and amenity of the building as a result of facilitating the provision of additional outdoor communal areas that will both:

• provide a variety of outdoor environments with their own individual microclimates,

• enable year-round use of such outdoor environments by residents, and

• enable residents to partake in outdoor activities within a safe, secure, accessible, high-quality and private environment.

40. The provision of communal outdoor environments at lower levels will confine residents to areas that are more heavily overshadowed during the morning and they would be located in proximity to the busy and adjacent Kildare Road and/or will be susceptible to overlooking from adjacent sites once they transition to higher-density forms of development.

41. Whereas, the proposed placement of the rooftop terrace will not be visible from the site's immediate surroundings and will not give rise to adverse impacts on surrounding sites (noting that rooftop landscaping will screen views and that the additional shadows cast by the terrace will be self-internalised within the proposed development's roof area).

40. Given that the placement of the terrace will substantially improve the amenity of future residents without impact to surrounding sites, I accept the submission that permitting the proposed building height variation will result in improved planning outcomes in this specific instance.

No significant or unreasonable impacts on surrounding residential areas

43. Despite the height standard noncompliance, I am satisfied that the development will not significantly nor unreasonably affect surrounding sites. The design of the development and its height will not result in excessive or unreasonable overshadowing and/or overlooking of adjoining sites, and as demonstrated in the request will not adversely affect the character of areas within the development's visual catchment.

No significant or unreasonable impacts on the public domain

44. I am also satisfied that the written request and the SEE (which it is appended) demonstrate that the proposed development will not significantly nor adversely affect the public domain. The building has been designed with regard to the site's orientation, topography and multiple streetscape frontages, and as such presents a high-quality appearance to the public domain. The six-storey form of the building will be consistent with that of existing and the likely future height and design of high-density residential flat buildings within the surrounding area, while the rooftop communal area will be recessed to a point that it is not perceptible from the public domain. Further, the form of the circulation core (i.e. the highest point of the building) has been designed to provide a distinguished and contrasting streetscape feature. As such, the proposed variation to the building height standard will not significantly nor unreasonably affect the public domain.

45. Having regard to the provisions within both cll 4.3(2) and 4.6 of the LEP, it is my considered opinion that:

1. contextually, the development is consistent with the objectives of the building height development standard pursuant to cl 4.3(2) of the LEP;

2. the application does not propose a variation to a clause that is subject to the application of cl 4.6(8) of the LEP;

3. the DA is not inconsistent with the approved concept DA, which was for a 6-storey building;

4. for the reasons stated, there are sufficient environmental planning grounds to justify contravening the development standard; and

5. that having regard to (a) and (b), compliance with the building height development standard is unreasonable or unnecessary in the circumstances of the case.

46. The proposed building height contraventions present superior planning and design outcomes when compared to design alternative and more compliant options that were explored during the design process. There is no statutory or environmental planning impediment to the approval of a building height contravention in this instance.

47. As the written request has satisfied statutory requirements pursuant to cl 4.6 of the LEP, the proposed variation to the height standard is approved.

Conditions are agreed and acceptable

48. On 24 October 2024, I directed the parties to confer and prepare a revised set of agreed conditions to reflect the agreed changes made during the hearing.

49. An agreed set of conditions was filed with the Court on 14 November 2024.

50. I am satisfied that the agreed conditions are acceptable.

Conclusion and orders

51. For the above reasons, I am satisfied after assessment that the amended DA should be granted development consent subject to the agreed conditions.

52. Accordingly, the Court orders:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA-23-00720 for demolition works, tree removal and the construction of a seniors living development comprising a 6-storey building including 3 basement levels for car parking, 42 residential aged care rooms comprising 60 beds and 27 independent living units, 56 car spaces, café, medical centre and commercial uses, and landscaping on land at 54-56Kildare Road and 1A Carinya Street, Blacktown, subject to the conditions of consent in Annexure A.

4. The exhibits are returned to be returned following publication of the judgment, except for Exs A-C, E and 4.

………………….

S Dixon

Senior Commissioner of the Court

Annexure A (452429, pdf)

**********

Amendments

09 December 2024 - Correction to typographical error at [35].

Decision last updated: 09 December 2024