Alnimat Pty Ltd v Sutherland Shire Council - [2010] NSWLEC 1038 - NSWLEC 2009 case summary — Zoe

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Alnimat Pty Ltd v Sutherland Shire Council

[2010] NSWLEC 1038

Land and Environment Court (NSW)|2009-11-02|Before: McClellan CJ, Preston CJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-11-02

Before

McClellan CJ, Preston CJ

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

Introduction 1 COMMISSIONERS: For reasons that will become obvious in the context of what follows, it is appropriate to commence this decision with a brief outline of the process that the Court now undertakes when dealing with development application appeals. For a number of years, commencing under McClellan CJ, and continuing (with greater emphasis) under Preston CJ, the Court has considered development application appeals not merely on the basis of asking the question whether or not to the proposal can be approved but also posing the question (if it is not capable of approval but is generally worthy of approval), can it be approved by requiring such modifications as are necessary - doing so properly within the reasonable scope of the application. This approach has been described, on a number of occasions, as being the "amber light" approach. 2 In addition to considering the changes that might be made to render an application approvable, it is critically necessary to ensure that the resultant approved proposal is not so significantly changed from that which was initially before the Court for approval that it, in effect, became a different proposition requiring a fresh development application. 3 In this process, consideration of the possible changes is to be undertaken, in our view, on what is effectively the same basis as the scope available to the Court to grant leave to amend the proposal when such amendments are advanced by an applicant in proceedings where an application to amend is contested by the council. 4 Further, it is necessary to ensure that there be no delegation of critical elements in such an amendment to some external body (see Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181) nor any ambiguity of significance left in the scope of the alterations to the plans (see Mison v Randwick City Council (1991) 23 NSWLR 734). 5 In this instance, we are dealing with an application for a socially desirable aged-care facility. Those of the nature described below, as proposed in these proceedings, have the benefit of a facultative State environmental planning policy, State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors Living). This proposal also has an element of local social desirability as was described in the evidence of the residents of another aged persons facility, Waterbrook, located on Wyralla Road, opposite one of the frontages of this proposal. Those residents hoped, in the orderly transition of aged living, as they expressed it, to be able to move, if needed, from their present independent living facility to this proposed facility with its more intensive available care levels. 6 It is within the broad process for consideration of this proposal, both generally and specifically, that we have proceeded to address the extensive range of issues that were raised by the council as warranting, either individually or cumulatively, refusal of the proposal. 7 As we have done so, it has become clear to us during the period since this decision was reserved that the issues have divided into two strands. The first of these comprises those issues that are definitely capable of resolution within the framework earlier described - where we felt we were likely to be able to determine, properly, on the basis of the plans and other evidence before us, what would be the necessary amendments required to render those aspects of the proposal acceptable. They will be outlined - but briefly only - in what follows (for the reasons explained in that context). 8 The second strand, however, was one in which we were exercising our minds in considering several interlinked issues. Here, for reasons discussed below, whilst the difficulties that arise may possibly be capable of resolution, such a resolution would require, potentially, a major redesign of a significant element of the proposal - and necessarily do so in a fashion which we are unable to specify on the basis of the evidence presently before us. 9 The cumulative effect of the changes we are satisfied would be necessary and could be specified by us - coupled with the potentially significant extent of the changes that might be necessary in the area where we are able to discern the impacts but not specify precisely the changes necessary to address them (merely the nature of the unacceptability) - means that the proposal must be refused. The proposal 10 The proposal seeks approval for a 96 place residential aged care facility on a site which stretches between Wyralla and Warrah Roads in Yowie Bay (in total referred to as the site). The site comprises seven existing allotments - four of which have their frontages to Wyralla Road (which street is to be the primary frontage of the development); two that have direct frontages to Warrah Road; and one allotment that is a battleaxe allotment having a right of carriageway driveway to Warrah Road but possesses no street frontage. There is a bend in the site at about the mid-point of the boundaries along the allotments between each street frontage.

[7]

18 The provisions of cl 25(5)(b) deal with the natural environment; services and infrastructure; and the impact on bulk, scale, built form and character of the proposed development. These three provisions are in the following terms: (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, (ii) ……, (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, (iv) ……, (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, (vi) ……. 19 In addition, in cl 33 Neighbourhood amenity and streetscape, SEPP Seniors Living requires, in its design principles, that: The proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) 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, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone. The site inspection 20 We inspected the site with the legal representatives of the parties and those advising and instructing them. We inspected both road frontages of the proposal and entered onto a number of either neighbouring properties or properties in the vicinity to understand propositions being put to us by those who wished to be heard either in opposition or in support of the proposal. Notes were taken of this informal evidence given during the course the site inspection and those notes subsequently formed part of the formal evidentiary record of the proceedings. The issues 21 the council is amended statement of facts and contentions raised a number of issues, both internal and external, concerning the proposal. Given the conclusion which we have reached as earlier outlined, it is not necessary to set out, exhaustively, the full range of issues, in our view, as pleaded by the council. It is, appropriate, however, to note that they included: * internal amenity and functional design of the proposal; * inconsistency with the character of the area; * non-compliance with development standards contained in SEPP seniors living and the lack of justification by objection pursuant to SEPP 1 for such non-compliance * unacceptable impacts on neighbouring properties of a variety of kinds; * unacceptable removal of trees; * inadequate information concerning details of the proposal; and * impacts from (and the adequacy of) proposed vehicle access at both ends of the proposal.

[9]

Compliance with development standards in SEPP Seniors Living 23 There are two development standards contained in SEPP Seniors Living that the council says are breached by this proposal. They relate to the maximum height for the proposed development contained in Part 4, Division 1, cl 40 of SEPP Seniors Living. 24 The first of these, contained in cl 40(4)(b), provides as follows: A building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must not be more than 2 storeys in height, 25 There is no doubt that this development standard is breached by the proposal. Mr Fletcher, expert planner for the applicant, prepared an objection pursuant to the State Environmental Planning Policy 1 Development Standards (SEPP 1), to complying with this development standard. Ms Pinfold, the council's town planner, did not consider that this SEPP 1 objection should be sustained for the reasons discussed in her statement of evidence. 26 The second development standard that the council says is breached by the proposal is that it contained in cl 40(4)(c), which provides that: A building located in the rear 25% area of the site must not exceed 1 storey in height. 27 Whilst the applicant did not accept that this development standard was breached because of the site has two frontages (to Warrah and Wyralla Roads as earlier described) and thus has no rear area, Mr Fletcher nonetheless prepared an objection pursuant to SEPP 1 to compliance with this development standard. This was prepared on a contingent basis (if we were to conclude that, contrary to the submissions made by Mr Robson SC for the applicant, that the standard, in fact, applied). If it applied, it was also clearly breached on the agreed position of the planners who had marked up a site plan with what might, if the site were to be regarded as having a rear area, comprise that necessary to be considered 25% portion of it.

[10]

The Warrah Road end of the proposal 28 Whilst we are satisfied that the overall presentation to Wyralla Road and the associated driveway arrangements at this frontage are acceptable, the same cannot be said with respect to the presentation of the proposed development to Warrah Road. 29 For the reasons that follow in this section of our decision, we are of the view that the Warrah Road end of the proposal, both in its streetscape context and in its acoustic impacts (on the neighbouring property to the south and the potentially on the residents of the proposal itself) necessitates a conclusion that this part of the proposal is unacceptable for the reasons that we describe below. That unacceptability might be able to be cured by a major redesign of this element of the proposal that addressed to the streetscape issues and was accompanied by appropriate acoustic evidence that indicated that the redesign had addressed and removed unacceptable acoustic impacts, whether certain or conjectured, arising from the proposal. 30 In understanding these concerns, it would appear to us that there are three elements of the design philosophy and site constraints that have led to this situation arising. They are: - The constrained nature of the frontage to Warrah Road (as there are only two allotments with a direct street frontage at this end of the proposal as compared to four allotments with a direct street frontage at the Wyrilla Road end of the proposal; - The incorporation in the design of the major loading dock facilities for the proposal into a basement at this end of the proposal (thus necessitating delivery vehicles entering the site; turning in the front setback; and reversing down an excavated driveway with masonry walls on each side); and - The determination to carry through both the floor plates of the building to a uniform setback from the Warrah Road frontage at a point closer to the street than exists in the immediate vicinity. 31 To enable a proper understanding of the matters that are discussed further concerning these three matters, it is appropriate to reproduce the three images below. They are, in order: - An extracted element of the ground floor plan for the relevant portion of the Warrah Road end of the proposal; - An extracted element of the elevations contained in the plans to reproduce the facade presentation to Warrah Road at that end of the proposal; and - A copy of the applicant's by photomontage of this end of the proposal in the existing streetscape. 32 It is to be cautioned that, because the first two images have been extracted, they are not to scale and should not be measured from although, obviously, they remain true to proportion. Similarly, the photomontage has been reduced to enable its reproduction in this decision and a similar caveat as to scale and proportion applies to the third image.

[11]

33 We turn, first, to the question of the streetscape presentation of this element of the proposal. As earlier noted concerning the applicability of various provisions of SEPP Seniors Living, we are obliged to consider, pursuant to cl 25(5)(b) of SEPP Seniors Living, whether or not we are of the opinion that the proposed development and is compatible with the surrounding land uses by having regard, inter alia, to the following criteria: The impact of 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. 34 Similar considerations arise from the provisions of those portions of cl 33(c) emphasised below: (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development , and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours 35 With regard to these matters for consideration, the existing uses both now and likely in the future are of a residential character and scale. Those in the immediate vicinity, to the left and right as one faces the proposal in Warrah Road, can be seen from the photomontage. Although there are duplex development elements in the vicinity that are two-storey and have a degree of hardstand in their front setbacks, there are none that present, in any fashion, significantly similar to that which is here proposed. It is not suggested, as we understood the planning evidence, that further developments of this nature would reasonably be expected in the vicinity (although some increase in housing densities were likely consistent with the relevant provisions in the LEP). 36 The site is located in the LEP's Zone 4 - Local housing. The zone objectives for the zone are in the following terms: (a) to allow low density residential buildings that complement the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land, (b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development, (c) to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone, (d) to allow residential buildings that provide a variety of housing choices for the needs of the local community, (e) to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential amenity of the zone.

[15]

In relation to identifying the desirable elements of the location's character, the experts agree that there is no consistent architectural style, there is a variety of materials evident in the buildings and there was a variety of roof forms. 40 The experts then proceeded to set out their views on the area of disagreement as to whether the proposed development has given adequate regard to the retention of the desirable elements of the location's character. 41 We make two comments before setting out, verbatim, the contesting evidentiary positions adopted with respect to this area of disagreement. The first is that, although cast in a different form, this area of the joint expert report deals with and responds to the matters of concern we have identified as relating to the Warrah Road end of the proposal and arising from cll 25 and 33 of SEPP Seniors Living. In addition, although further extensive oral evidence was given by these witnesses, it is our understanding of this evidence that it did not encompass any resiling from the conclusions expressed in the written joint report (to the extent that that oral evidence related to the Warrah Road end of the proposed development). 42 Although the material reproduced below from the joint statement encompasses not only the aspects about which we have reached an adverse conclusion (being confined solely to the Warrah Road end of the proposal), the positions taken by the experts also covered, as set out below, a range of other matters connected to this topic. However, for ease of understanding their positions, although it involves the incorporation of what might otherwise be regarded as extraneous material, we have reproduced the totality of what was written by each of the four of them (as we have concluded that to endeavour to edit the content of the joint report so as only to provide material relevant to this issue of concern would have created difficulties in understanding the nature of the material presented to us). As a consequence, it is reproduced in full. We have, however, added emphasis by our by our bolding and underlining of those areas in each of the elements of the extract reproduced below that we think are of particular relevance to the matters of concern to us. 43 Also, in our view appropriate to enable an understanding of the positions taken, we have presented the contrasting positions of the two town planners followed by those of the two architects. 44 Mr Fletcher said: It is my opinion that the existing character of the locality is not homogenous. Whilst detached single dwellings of one and two-storey height set on allotments of landscaped front and rear yards dominate, there are notable examples of much more intense forms of development such as Waterbrook retirement village opposite the site as well scattered medium density housing developments.

[27]

DP states that the proposed development does not achieve reasonable neighbourhood amenity and appropriate residential character as : + The proposed building extends in continuous built form from Wyralla Road to Warrah Road, eliminating the existing pattern of vegetated rear yards and band of canopy trees across the site. + The proposal retains only two canopy trees of scale along north western boundary of the site, according to the Arborist's report. The remainder of the band of canopy vegetation of scale running across the amalgamated rear yards of the sites is to be removed. + In the central most part of the site currently occupied by vegetated areas and small scale outbuildings, the proposed building has a two or three storey height, including a ground floor level which sits higher than the existing boundary fence on the shared eastern boundary with the rear of 28 Wyralla Road, 36, Warrah Road and 65-67 Wonga Road. This part of the building also contravenes the 25% single storey control established by clause 40(c) of the Seniors SEPP. + The building design which seeks one continuous building over the length of the site and to retain uniform floor levels throughout the building, results in significant excavation along the Wyralla Road frontage and the elevation of the ground floor levels to a height of at least 1 m out of the ground along the above mentioned boundaries. As such the building form and siting does not relate to the sites landform. This is illustrated on the diagram in Annexure B. + The proposed landscaping is not considered by Council's Landscape expert to re-create the characteristic landscape pattern of the locality or get a canopy cover across the site that is typical of that in the locality. + The Warrah Road setback is not in sympathy with the street setback as it is set forward of the existing single storey dwellings on either side; has a subfloor height which constitutes a storey under SSLEP 2006, and as such would be characterised as a three storey building under that instrument and be out of character with the type of development that can be expected in the locality were two-storey height limit applies; and a significant portion of the front setback is occupied by the vehicle turning/ambulance bay, in contrast to the vegetative front setbacks which characterise this street.

[33]

48 We cannot accept the position advanced by Mr Fletcher and Mr Ollerton (noting, in this context, that our disagreement is here confined to comments solely applicable to the Warrah Road end of the proposal). We prefer the opinions expressed on these matters by Ms Pinfold and Mr Booker. 49 There are significant discordant differences not merely in the nature of the built form and its proximity to Warrah Road in that which is proposed by the applicant but there is also the significantly different and, in our view, discordant and unacceptable creation of the turning space in the front setback coupled with the excavated masonry-walled drive descending into the basement loading dock. 50 There is nothing of a generally modest residential scale in the way that this proposal would necessarily read when viewed from the street. The built form, although with a degree of articulation, is nonetheless domineering given that there is no setting back of the upper level from the lower level in any of the presentation in this streetscape. The comparatively un-fenestrated presentation of the central, masonry-faced portion of most forward element reinforces, in our view, this domination in this streetscape. Further, the inability to provide any landscaping of any significance in the front setback that could shield turning movements of delivery trucks means that the nature of the use of the front setback for turning purposes will be more visually akin to the commercial nature of the facility rather than of any vehicle movement pattern likely to be consistent with the pattern of present or future development reasonably expected in the vicinity. 51 It is not appropriate for us to speculate whether or not design changes can cure these faults - however, it is safe to say that, consistent with the "amber light" approach taken by the Court, we are unable to visualise such a resolution in a fashion that we could specify and require within the scope of these proceedings. 52 A similar position applies with respect to visualising a resolution for such changes as might result for the internal design of the built form itself and the necessity to make the spaces inside, comprising two wards of the proposed facility including the dementia ward, work in an appropriate health care fashion. We simply do not have the specialist expertise that would permit us to undertake this task even if the external changes could be envisaged. Nor, indeed, would it be appropriate for us to do so. 53 This proposal is not in a position where, in the case of a residential flat building, for example, otherwise unacceptable impacts might be resolved be removing one unit from the top floor of the building or some other alteration to presentation or facade treatments. 54 Although we are satisfied that the matters described above concerning the presentation of the proposal at its Warrah Road frontage are sufficient to warrant refusal unless redesigned in a fashion (beyond the scope capable of being dealt with within the present application), we were also left with a significant feeling of disquiet about the actual and possible acoustic impacts of the driveway. 55 Mr Wasserman, acoustic expert for the applicant provided a Statement of Evidence and gave oral evidence to supplement it. His cross-examination by Mr Green, solicitor for the council, exposed a number of defects in his consideration of the possible acoustic impacts of the Warrah Road end of the proposal.

[35]

Discussion of the resolvable issues 60 Of all the issues outlined earlier, we had formed the tentative review that it was likely that they were able to be resolved in a satisfactory fashion by a series of amendments that we could require, within the scope of the present application, and do so in a fashion that did not go beyond the bounds of that which was capable of being dealt with in these proceedings. In coming to that negative conclusion, we are also had regard to the fact that, if we were to do so, we would need to deal with two objections made pursuant to State environmental planning policy number 1 to compliance with development standards contained in the SEPP Seniors Living by either sustaining one of the objections and determining that the other development standards did not apply to buy sustaining both objections to compliance. 61 We had tentatively concluded that, if the proposal were to be mollified in the various aspects we were contemplating, we did not see that those development standards were insurmountable impediments to the application. 62 However, the particular modifications to the application that we were contemplating, particularly those responsive to matters raised by the council involving (or arguably involving) non-compliance with development standards would have been subject to requirement of some significant changes to the proposal. These changes, in totality, would have required us to consider whether or not to those changes would be so substantial, in themselves, in total, so as to render the proposal as we would have required it to be amended sufficiently different from that which can was the subject of the existing application that a fresh development application would have been required. We do note that we anticipated that, had we finalised those matters in the fashion we were contemplating, that boundary would not have been crossed (had we considered it appropriate to continue down that path). 63 Although we considered it a appropriate to give this indication that we considered, on a tentative basis, that this suite of issues was capable of being resolved, given that it is possible that the applicant may seek to respond to this decision by addressing the issues upon which it has failed by a redesigned Warrah Road end of the proposal in conjunction with consideration of an adequate acoustic assessment, it is not appropriate for us to make to comment in detail about the other issues that were in contention as to do so would be to offer gratuitous advice to those who might be required to determine some future development application (be that at a council or a Court level) particularly as we had not reached a final and confirmed conclusion on those matters. 64 Given the position at which we have arrived concerning the design deficiencies at the Warrah Road end, giving of gratuitous advice to such future decision-makers would fly in the face of the comments made, appropriately in our view, by Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 26.