Woodfield Retirement Village v Ashfield Council

[2004] NSWLEC 299

Land and Environment Court

of New South Wales

CITATION:	Woodfield Retirement Village v Ashfield Council [2004] NSWLEC 299
PARTIES:	APPLICANT Woodfield Retirement Village RESPONDENT Ashfield Council
FILE NUMBER(S):	11223 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 .
CASES CITED:
DATES OF HEARING:	10 and 11 March 2004
EX TEMPORE JUDGMENT DATE :	03/12/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso, barrister INSTRUCTED BY Wilshire Webb RESPONDENT Mr S Griffiths, solicitor Pike, Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11223 of 2003 Moore C 12 March 2004

Woodfield Retirement Village
Applicant

v Ashfield Council
Respondent

Judgment

1 . This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of a development application for the redevelopment of the former Bennelong Nursing Home facility at 48 Arthur Street, Ashfield. Although no formal notice of determination is available in the material before the Court, it is apparent that the matter has subsequently been considered by Ashfield Council (the council) on 18 November 2003 and dealt with by rejection.

2 . I should indicate, at the commencement of these reasons, that, although the application in its present form is unacceptable it is, in my view, potentially capable of being rendered acceptable. I propose to follow the course outlined to the parties during the proceedings of providing a commentary on those matters that have been placed in issue where I am minded to uphold in whole or in part the objections of the council.

3 . The convenient course it seems to me for me to follow in dealing with the issues in this matter, given that, as a result of the application being for redevelopment of a site with existing use rights there are no matters of principle or regulation arising from the Local Environment Plan or the Development Control Plan (except to the extent that they relevantly provide me with guidance as to the desired future character and amenity of the area) is to deal with the issues that arise between the parties almost in terms of a geographic tour of the site, that being the fashion in which the issues have been dealt with by the parties in the course of the evidence and of the submissions.

4 . The first matter that arises for consideration, however, is that of the context within which the matter is to be determined. There was some discussion during the course of the proceedings and in closing submissions as to what weight, if any, I ought appropriately give to the fact that the proposed facility to be erected on the redeveloped site is a nursing home run by what might be loosely be described as a public benevolent organisation – being an organ of the Uniting Church. I am satisfied that to the extent that the proposed activity on the site will potentially provide a public benefit consistent with the provisions of the objectives of the Act at s 5(1)(a)(i) and 5(1)(a)(v), it is a matter of some relevance to the extent that it provides the benefit to that broader public. To the extent that it provides a benefit to the applicant or that issues of economic viability for the applicant arise, I am of the view that it is not appropriate for me to take that into account. As a consequence, although there is some weight to be given to that matter, it would not in any way be sufficient for an application that was otherwise unacceptable when assessed pursuant to the criteria in s 79C of the Act to render it acceptable.

5 . I was also invited by the council to have regard to the provisions of State Environmental Planning Policy No.5 - Housing for Older People to the extent that they might provide me with some broad conceptual framework for matters of building height and the like but I find them of little or no assistance in these proceedings.

6 . I turn to the issues that require to be addressed concerning the site. The first one that it is convenient to deal is that concerning the retention of the elements of a building known as Gallop House, which is a remnant structure in the generally north-western and western portion of the site. To some extent, the difference between the expert heritage witnesses – for the applicant, Mr Rappaport, and for the council, Mr Moffit – on this heritage issue divide between the position of Mr Moffit which might summarily be described as “there is an ability to conserve the entirety of the remnants of Gallop House and that the merits of doing so warrant it”, compared to the position of Mr Rappaport which is somewhat further to the other end of the spectrum and his assessment that it is not merely inappropriate but that, as I have noted his evidence, conservation can be " a growing moving thing, you can't be too static ."

7 . The position that I need to determine in these proceedings is whether it is acceptable, having regard to the heritage considerations of Gallop House, that the applicant's proposal for an interpretive restoration of the more northern element of the house is the appropriate one and it is acceptable, compared to the council's position that the entirety of the remaining fabric should be retained and restored. In short, I determine that the applicant's position is to be preferred on this issue.

8 . I do so for reasons that the material which is before me contains evidence from four individual experts with respect to the preservation or otherwise of the rear wing of Gallop House. On one hand there is the position to be taken from Mr Moffit's evidence, and the report of a conservation assessment of a Mr Howard undertaken in 1995, which conclude that, effectively, the entirety of the built fabric which remains should be retained. On the other hand, the statement of evidence of Mr Rappaport and the assessment of Mr Robert Moore, a heritage consultant earlier retained by the council – a deal of whose material is contained in the council's bundle of documents but a significant portion of which (including, I am satisfied, the primarily relevant document for my purposes) is contained as in appendix 15.7 to Mr Moffit's statement of evidence. It is clear from Mr Moore's material that he considered that the removal of the rear wing was acceptable under the circumstances.

9 . As a result of the course of the view, I am satisfied that there has been a sufficiently large interference with and derogation from the value of the original material in the southern wing (the return wing) of Gallop House by virtue of the removal of internal partitioning, the removal of at least one of the internal walls and of the southern wall together with unsympathetic intrusions in the fenestration at the rear of the dwelling in that element of the Gallop House dwelling at the upper level, as to render it inappropriate, on balance, to require its retention. Had there been sufficient degree of flexibility available, as I will deal with later in these reasons for decision dealing with bulk and scale, to require the deletion of what comprises the bed 7 area at the ground floor level of the proposal and the reinstatement of the Juliet balcony, that might have provided an additional value to the interpretive nature of the front section of Gallop House but it is, in my view, not such as to be determinative and to warrant the retention of it in its entirety.

10 . There were, however, also a number of subsidiary matters with respect to the Gallop House element. The first of those related to Mr Moffit's contention that the staircase should be retained. Mr Moffit presented significant evidence and indeed, but for the intrusion of the evidence of Mr Wilson on this point, otherwise compelling evidence as to the desirability of the retention of the staircase both for interpretive and contextual reasons. In that regard, I wish to make it expressly clear that I accept Mr Moffit's evidence in preference to that of Mr Rappaport on this point. However, it was Mr Wilson's evidence, as the architect for the project (and evidence which clearly came as a surprise to Mr Moffit) that if the staircase were to be retained it would not be capable of being used because of its non-compliance with the relevant provision of the Building Code of Australia and reasons of other occupational health and safety requirements. It was also Mr Wilson's evidence that retention of the staircase would not permit an appropriately sized width disabled person's access corridor adjacent to the staircase at the ground level.

11 . Mr Moffit was provided with the evidentiary opportunity to respond to that evidence and, in addition to expressing his surprise, suggested that the staircase could be retained but rendered secure by isolation by perspex screen and the like. I am satisfied that, although it would otherwise have been desirable to retain the staircase, that would only be appropriate if it were capable of being part of the usable fabric of the retained portion of Gallop House. I therefore conclude that, under the circumstances, I must accept Mr Wilson's uncontradicted evidence that it would not be, and unfortunately would not be, appropriate to retain the staircase.

12 . The next element, with respect to Gallop House, concerns the link between the Gallop House structure to be retained and the proposed new building elements to be constructed to the east of it. Mr Moffit proposed that the link should be set further back into the building a modest distance in order to create a better visual impression of separation between the elements. Although the applicant would have a preference that that not be the position and had a view that it was not necessary, that was not strongly contested. Indeed it was conceded that it would be possible to achieve that to the degree of depth that would arise if the toilet area to the south of the Director of Nursing's office were to be deleted and the Director of Nursing's office moved to that extent to the south to increase that gap. That would be an appropriate course to follow in my view.

13 . The third matter of detail relating to Gallop House was the appropriateness or otherwise of the veranda element proposed at the western edge in the north-western corner. It was Mr Moffit's evidence that such a veranda did not exist in the original fabric of Gallop House, a position I do not understand to be contested by Mr Rappaport. The position adopted by the applicant is that it would be not inconsistent, in a contextual framework, for that veranda to be constructed and it would provide some significant amenity benefits to the residents if that were to occur. However, I am satisfied from the evidence of Mr Moffit that, if the interpretive appropriateness for Gallop House is to retain some sense of setting and linkage with the historic personage, Quong Tart, who lived in the house at the turn of the 19th to 20th centuries, it would be appropriate that that veranda be deleted.

14 . Such deletion might permit, in addition some modest angling rather than a severe bend in the structure of the driveway ramp, some ability for the applicant to address another matter which was placed in issue by the respondent council as to the adequacy of the perimeter landscaping in the north-west corner of the site. Whilst Mr Wilson conceded that there might be some scope to break the waste disposal bin storage facilities in that area to give a greater sense of landscaping, if it were possible to provide a modest angling to the drive as a consequence of the removal of the veranda, there might well be additional landscaping benefits available to address that issue. However, in itself that would not be a matter warranting refusal or other intervention by the Court.

15 . It is clear from the scope of the evidence given by Mr Moody, the town planning consultant engaged by the council, that the council's expert position is not that a third storey is incapable of being accommodated as part of the development. However, it was the position of Mr Moody that the third storey element required significant modification. I have dealt with one of the areas where such modification was proposed, as that would have been necessary had the return wing of Gallop House been required to be retained. As I have determined that that is not appropriate, I do not need to deal with that further with respect to bulk and scale – save to note that Mr Moody's concerns as to bulk and scale along the north-western quadrant of the site were not significant given the width of the driveway to the adjacent women's refuge and the significant setback of that refuge from the western boundary of the site.

16 . The positions that do need to be determined with respect bulk and scale are those which relate to the approximately rear 40% of the development on its eastern frontage and approximately 30% of the western boundary lapping around to a similar proportion of the southern boundary, that is, essentially the south-western corner of the development. I note, in passing, that the issue which had been raised by the council and which had technically remained in contention (enumerated as issue number 8 in the statement of issues) relating to the proposed roof design and the external cladding treatment to the third level, were resolved by Mr Moody's evidence in which he conceded that an appropriately rendered external treatment of that level, dealt with in accordance generally with the guidance provided by Mr Moore in his heritage memorandum, would be appropriate as would the flat roof proposed for that level.

17 . With respect to the issue at the east, at the rear of the site, the matters which were of concern and raised by Mr Moody (and reinforced by the evidence given in the rear yards of a number of the resident objectors whose houses were inspected) concerned the bulk and scale of the view directly to the west from those rear yards, or in one case from a rear yard when looking to the north-west at the corner of the development. It was Mr Moody's contention that the proposed development, which is to be set somewhat further towards the eastern boundary of the site, should be setback at the ground level to the existing alignment of the two-storey elements with setback for the first and second storeys above that beyond toward the west.

18 . Although in a perfect world that might well be a desirable position, I am obliged in this context to address whether that which is presently proposed is acceptable rather than whether it is a representation of excellence and elegance in design. The setbacks at that end are quite significant and there is a proposed stepping in of the development at the third level. There are also no fenestration elements of any significance looking toward the east and the applicant has accepted a condition that provides, at the end of the two corridors that have fenestration to the east, a requirement that there be obscure glazing on them together with obscure glazing elements for the balconies at the courtyard at the U-invert to the development, proximate to the area where the site doglegs towards the east. On balance, although I understand Mr Moody's concerns, given the separation between the boundary and the proposed form that it is, albeit marginally, nonetheless acceptable. However, I would not find it acceptable if, in any redesign, it were necessary or desirable (in the eyes of the applicant) to move that element any further to the east at any of the three levels.

19 . I now turn to the area that might be described as the south-western corner of the site. There are a number of minor matters arising in that area which I will deal with in detail but there is nonetheless a significant principal issue that requires to be addressed and, that is, whether effectively the bulk and scale of the south-western corner, as presently proposed, is acceptable or not. I had the opportunity to view that element of the building with height poles erected to the underside of the eaves of the proposed first storey at two points from an adjacent property slightly to the south of the edge of the built form.

20 . I am satisfied that, at that point, the bulk and scale, both as to its impact to the two properties that abut that portion of the site on the west and the property immediately to the south at the south-western corner, are unacceptable. Given that conclusion, modification of that corner would provide an adjustment which would assist with solar access to the properties to the south and south west. I consider it desirable that, to ameliorate the bulk and scale in that area, it would be appropriate to pull in the corner of the building at both the first floor and second floor levels so that there was a stepping back at that corner of the site. That is the single issue with respect to the acceptability of the proposal that I would consider determinative if it were unable to be achieved.

21 . There are a number of matters of detail concerning that corner of the building which also warrant consideration. During the course of his closing submissions, Mr Galasso, for the applicant, handed up a sketch plan prepared by Mr Wilson overnight which is not formally in evidence but was provided as an aid for my consideration. There are two matters contained on that of what I would regard as fine detail about which it is appropriate that I comment.

22 . Firstly, I note that Mr Wilson has conceded that it would be possible to redesign the patio area in the south-western corner so that the patio no longer traversed the external area of the proposed staircase. By deleting that element of the patio, there would be a significant reduction of the potential overlooking areas, particularly the bulk of the closest overlooking areas, from the neighbouring properties immediately to the south and west at the south-western corner. It would also provide further opportunities for landscaping in that area. I consider that would be a desirable amendment. It is also noted that it would be possible to provide a gate in proximity of what would be the south-western corner of the building that would provide, if not a barrier, at least a disincentive to the use of that patio as a regular thoroughfare. That would also be desirable for purposes of protection of the amenity of the adjacent properties.

23 . There was some discussion as to the appropriateness of screening along the top of the balustrade of that patio area commencing from approximately the wall between existing proposed beds 17 and 18 on the ground floor, continuing around to and including boundary of the property immediately to the south of the women's refuge property. I would consider it appropriate for the parties to consider a modest degree of obscure glazing or similar treatment to that to enhance the privacy protection of the properties that would otherwise be involved. If those matters were dealt with, it would seem to me that they would provide an acceptable resolution of the privacy impacts that have otherwise been raised.

24 . The final matter is the issue raised by those residents to the east who were concerned at the possible parking impacts in Shepherd Street. In that regard, I note that there is a joint statement by Mr Moody and Mr Cody (Mr Cody being the traffic and parking expert retained by the applicant). That statement is in evidence and notes that those experts also agree " There is no issue associated with the on-site car parking incorporated in the nursing home redevelopment proposal that would warrant refusal of the development consent." I understand the apprehensions that neighbours in Shepherd Street might have. However, it is not appropriate for this Court merely to deal with perceptions or apprehensions, there has to be either an impact or the real probability of an impact which would be sufficiently adverse to require modification. On the basis of the uncontradicted joint expert report, I am not satisfied that there would be such an impact. As a consequence, I do not conclude that I should make any intervention with respect to parking matters.

25 . The overall conclusion which I have reached that the application is capable of approval, if modified in the terms that I have outlined. If the applicant is not able to modify the application in the terms that I have outlined or the council is not prepared to accept such modification in the terms that I have outlined, then I would be obliged to dismiss the appeal and refuse the application development consent.

Tim Moore
Commissioner of the Court