Cranbrook Properties Pty Ltd v Woollahra Municipal Council

Segal & Anor v Waverley Council [2005] NSWCA 310; CASES CITED: Dr L Mechtier v Woollahra Municipal Council, Appeal No 10267 of 2003, (unreported); Dr L Mechtier v Woollahra Municipal Council, Appeal No 10746 of 2001 (unreported) ; Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

APPLICANT Mr P Clay, barrister Solicitors S Moran &Co LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor Solicitors Home Wilkinson Lowry, Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11434 of 2005 Cranbrook Properties Pty Ltd v Woollahra Municipal Council

1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application (DA 504/2005) under the Environmental Planning and Assessment Act 1979 (the Act) for a residential care facility at 599 - 601 New South Head Road and 1 Cranbrook Road, Rose Bay (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is at the corner of New South Head and Cranbrook Roads. It is three allotments with a combined site area of 1898sqm. 599 New South Head Road has a three storey, brick hipped roof building (RL16.85m to ridge height). 601 New South Head Road has a two storey, brick, hipped roofed building (RL12.65m to ridge height). Both these building are used as the Cranbrook Hotel. They have a combined frontage to New South Head Road of 30.48m, an eastern frontage to Cranbrook Road of 46.94m and a western side boundary of 45.72m. Their southern boundary adjoins 1 Cranbrook Road, which is developed with a two storey brick house. This allotment has a curved eastern/southern frontage to Cranbrook Road of 40.6m and a western side boundary of 27.43m. 4 1 Cranbrook Road adjoins "Rothesay" at 3 Cranbrook Road, a heritage listed house set in extensive gardens. 5 Cranbrook Hotel is at the eastern end of a row of buildings along New South Head Road between Cranbrook Road and Cranbrook Lane. There are seven buildings in the row. The adjoining buildings to the west are: 597 and 595, three-storey inter-war apartment buildings over garages that are partially excavated; 593 (the Chilterns), three-storey apartment building with an open area at ground level used for parking; 589 (the Pier Villas), terraced apartment building; No 585 (Rosama), a four-storey apartment building over ground level garages. 6 To the east, on the opposite side of Cranbrook Road, is a two storey brick house with a gable roof (603 Cranbrook Road). Other buildings in this block are predominantly two storeys. 7 Across New South Head Road to the north is the Rose Bay Esplanade with substantial street trees. 8 There is a large ficus tree at the front of 599 New South Head Road and five smaller trees along the Cranbrook Road frontage of the site. The proposal and its history 9 The application was lodged on 16 August 2005 and was notified to adjoining and nearby residents. Council received eight objections. Council refused the application on 6 March 2006. 10 Two previous applications for 599 and 601 New South Head Road have been the subject of appeals to the Court. Dr L Mechtier v Woollahra Municipal Council (Appeal No 10746 of 2001) for a five storey hotel was dismissed by Roseth C on 19 March 2002 (the 2002 appeal) on the grounds that its bulk and scale was excessive in the context of buildings on New South Head Road. Dr L Mechtier v Woollahra Municipal Council (Appeal No 10267 of 2003) for a four storey hotel building was upheld by Roseth SC on 1 September 2003 (the 2003 Appeal). 11 Consistent with the decision in Segal & Anor v Waverley Council [2005] NSWCA 310, the Court is not bound to follow the decisions of Roseth SC or even to take them into account if irrelevant to the resolution of the contested issues. This application must be considered on its merits in the particular circumstances of this case. However, I note that the decision in Segal also stated that it is desirable to apply consistent principles and to refer to a previous decision, where relevant. In providing reasons for my decision it is appropriate that this be done in the context of Roseth SC previous decisions. The current application is for a larger site and a different use but Roseth SCs consideration of the height and bulk of the earlier applications is a relevant consideration in this appeal. His consideration of landscaped area in the 2003 consent related to the hotel use and is therefore of less relevance. Proposal 12 The proposal is to demolish the existing buildings on the site and construct a residential care facility as defined under State Environmental Planning Policy - Seniors Living (Seniors SEPP):

Residential accommodation for seniors or people with a disability that includes meals and cleaning services; personal care or nursing care or both; appropriate staffing, furniture furnishings and equipment for the provision of that care; and not being a dwelling, hostel, hospital or psychiatric facility. 13 The applicant has approval from the Department of Health and Aging for 80 low level residential care places. In essence this approval means that at the time of entry to the aged care service the occupants are approved as requiring low level residential care. The occupants would age in place and their level of care may progress to high level care. The approval specifies that the facility must cater for dementia patients. Of the 80 beds, 10 are to be allocated to dementia patients. The parties and residents generally supported the provision of such a facility in this location. 14 The building is five levels above two basement levels. The lower basement (level 1) provides parking for 22 cars (8 visitor, 12 staff and 2 disabled) accessed off Cranbrook Road. The other basement (level 2) includes services, plant and facilities such as a gym, hydrotherapy pool, games room and staff room with a sunken courtyard. The ground level includes a licensed dining area for use by the occupants and their visitors. The ground and first floors (levels 3 and 4) occupy a large proportion of the site and the basements extend beyond this floor plate. The second and third floors (levels 5 and 6) are setback from the southern boundary and contained within the allotments of 599 and 601 New South Head Road. The fourth floor (level 7) is set back from the floor below. 15 The proposal has a height to the top of the parapet of level 6 of RL15.6m and an overall height of RL18.4 -19.1m. The floor space ratio (FSR) of the proposal is 3.1:1 of which 2.15:1 is above ground.

Planning Framework 16 599 and 601 New South Head Road are zoned Residential 2(b) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is not permissible within the zone. However, this part of the site benefits from existing use rights under ss107 and 108 of the Act and cls 40 - 43 of the Environmental Planning and Assessment Regulations (the Regulations). 17 The application was lodged prior to the amendments to the Act and Regulations relating to existing use rights and is therefore not effected by these changes. 18 1 Cranbrook Road is zoned Residential 2(a) under LEP 1995. Residential care facilities are not permissible within this zone. Approval for the application on this part of the site is sought under the provisions of the Seniors SEPP. The proposal on 1 Cranbrook Road generally complies with the requirements of the Seniors SEPP. 19 The provisions of LEP 1995 and Woollahra Residential Development Control Plan 2003 (DCP 2003) apply to 1 Cranbrook Road to the extent that there is no inconsistency with the Seniors SEPP. 20 Land to the west along New South Head Road is zoned Residential 2(b). Land to the east along New South Head Road and to the south along Cranbrook Road is zoned Residential 2(a). 21 The adjoining site, Rothesay, 3 Cranbrook Road, is listed as a heritage item under LEP 1995. Cl 27 requires that the likely effect of the proposed development on the heritage significance of the item and its setting must be considered. 22 Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours (SREP 23) and State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries (SEPP 56) are relevant controls in relation to 1 Cranbrook Road. 23 Section 108 (3) of the Act states that the provisions of any environmental planning instrument cannot derogate from the existing use rights. Compliance with the controls in LEP 1995 is therefore not required and the application should be assessed under s79C of the Act. The parties agreed that the existing buildings in the block between Cranbrook Road and Cranbrook Lane exceeded the controls in LEP 1995 and DCP 2003 and were unlikely to be redeveloped. It is therefore appropriate to consider the extent to which the proposed development would fit into the context of these existing buildings. The planning controls were indicative of the type of development likely to occur to the east and south of the site and should be given weight in assessing the development within this context, consistent with the principles established for existing use rights by Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71. The evidence 24 The Court heard evidence from the following experts: 25 For the council · Mr A Rowan, planning and heritage consultant · Ms S Young, urban designer · Mr A Simpson, arborist 26 For the applicant · Mr M Harrison, architect, planner and urban designer · Mr I English, arborist · Mr A Brotherhood, aged care consultant 27 Mr C Hazell, the Court appointed traffic expert and Mr G Brooks, the Court appointed heritage expert provided evidence. 28 The Court heard evidence on site from the following residents: · Ms M Clark, on behalf of the Rose Bay Residents Association · Mr and Mrs Krail, 2A Cranbrook Road, Rose Bay · Ms S Ansell, 22 Beresford Road, Rose Bay · Mr S Hempton, on behalf of his mother, Dr Y Lucine, 597 New South Head Road, Rose Bay · Mr and Mrs Jensen, 2 Beresford Road, Rose Bay. 29 The main concern of these residents was the height, width and bulk of the proposal and its impact when viewed from the Rose Bay Promenade. They considered the development to be out of character with existing development in New South Head Road and Cranbrook Road both in its built form and the extent of landscaping proposed. They stated that the proposal provides insufficient parking, which would result in unacceptable parking and traffic impacts on the surrounding streets. There are already problems with on street parking, especially at the weekend. Some residents were concerned about the extent of excavation and the water table and the potential impacts on their properties and the street trees. 30 Mr Hempton stated that the proposal would block views to the east from the windows of 597 New South Head Road. These windows were to bedrooms and kitchen. 31 The owners of Rothesay, Mr and Mrs Casey, were overseas and sought leave to be joined as an intervenor in the case and for evidence to be presented by the consultants who had prepared submissions on their behalf in response to council's notification of the application. These reports were tendered as part of council's bundle of documents (exhibit 2). For the reasons I gave during the proceedings I did not grant this leave. 32 The consultants: Mr C Lucas; Mr R Chambers; Mr M Taylor and Mr A Morton were available to point out the matters raised in the submissions on behalf of the owners of Rothesay. The main concern was the impact of the proposal on the heritage significance of Rothesay, including its historic connection with Rose Bay through the further loss of views originally enjoyed from the house; the visual impact of the bulk of the proposal and its likely impact on trees within the grounds of Rothesay and the change to its landscape setting. The issues 33 The Statement of Issues before the Court contained 11 issues which can be categorised as whether:

i) the height, bulk and scale of the proposal will have an acceptable impact on the New South Head Road and Cranbrook Road streetscapes. ii) the proposal provides adequate open space and landscape setting. iii) the proposal will adversely impact on the heritage significance of Rothesay, 3 Cranbrook Road. iv) the proposal will impact on the health of trees adjoining the site. v) the amenity of the proposal is acceptable vi) the proposal provides adequate parking.

Streetscape impact - New South Head Road 34 The experts held different opinions as to whether the proposal was appropriate in the context of other building along New South Head Road. They agreed that it was a prominent corner site and that its immediate context was the block between Cranbrook Road and Cranbrook Lane. Mr Rowan and Ms Young also placed emphasis on development to the east along New South Head Road. 35 The experts agreed with the finding of Roseth C in the 2002 appeal that: The southern side of New South Head Road is a visually prominent area. Many people walk along the promenade on the northern side. The Cranbrook Road to Cranbrook Lane strip is already the bulkiest part of New South Head Road along Rose Bay. 36 The experts drew different conclusions as to whether the proposal would result in an unacceptable increase in bulk within this context. Mr Harrison considered that the proposal's location justified a marginal increase in height and bulk to emphasis the corner. 37 Mr Rowan and Ms Young considered that development was not a marginal increase and that the corner included the opposite side of Cranbrook Road. 38 The experts noted Roseth C's comments in the 2002 Appeal that "While they may be poor indicators of bulk, visible FSR, height and width are the only objective measures by which visual bulk can be assessed. Each of these measures individually may be inadequate, but together they constitute a reasonable indicator of bulk." Mr Harrison added that:

bulk needs to be assessed with visual aids such as photomontages and that simple objective measures can be misleading because, for example, a hollowed out building of the same height, width and depth would have a very different FSR. Similarly, the visual impact of height and width can be moderated by step backs and building mass modulation. 39 I agree that together height, FSR and width are a reasonable indicator of bulk. But that they are only an indicator and the physical form and expression that these measures take also needs to be considered. This process is of course assisted by visual aids. 40 The trees along both New South Head Road and Cranbrook Road limit the views of the building, however, the experts agreed that the bulk of the building should be acceptable in its own right and not rely on trees for screening. 41 Mr Harrison stated that the site was larger than the 2002 and 2003 appeals. It also has a changed context as it no longer adjoins a single dwelling to the south. While this is correct these factors do not change the impact of the proposal from New South Head Road. The experts provided, in their agreed statements, a comparison of the numerical indicators for the existing buildings on the New South Head Road allotments of the site, the current proposal for that part of the site, other buildings on New South Head Road and the 2002 and 2003 appeals. In examining these numerical indicators the proposal is higher (except for 587 New South Head Road, at the western end of the block) and wider with a greater FSR than these. It exceeds the envelope for the New South Head Road part of the site about which Roseth C in the 2002 Appeal stated "the proposal's bulk is excessive for its context". 42 The key difference in opinion between the experts related to the height of the proposal and the impact of the fifth floor (level 7). In summary the experts held the following opinions. 43 Mr Harrison considered the height of the proposal needed to be assessed against the overall height of the other buildings in the block. These buildings were not consistent in their height or style and their appearance was varied. The only consistent element, and the dominant element, being the fig trees. He stated that the "silhouette" formed by the pitched roof of these buildings was the main determinant of height. The setback of the top floor of the proposal and its flat roof form offered more amenity than a pitch roof but was within this envelope. He considered that the height of the parapet responded to the height of the adjoining building at 597 New South Head Road and that the overall height was consistent with other buildings in the block. In his opinion a variation of the parapet to the height of 597 New South Head Road of one floor was not important in a strip with varied heights and the proposal would not be the highest building in the block. 44 Mr Rowan considered that the height formed by the parapet/gutter line was the dominant element in the block and that the pitched roofs were recessive elements. In his opinion the overall height of buildings descended from west to east but there was a consistency in the gutter line, particularly of the adjoining buildings to the west. The proposed parapet was 2.4m higher than the gutter line of 597 New South Head Road and about 400mm higher than the 2003 approval. In his opinion the exceedence of almost a storey was too great. The predominant building height in the block was three storeys plus a pitched roof and overall the proposal would be two storeys higher. This disparity in height was further exacerbated by its relationship to the buildings to the east across Cranbrook Road, which were predominantly two storeys. 45 Ms Young placed more emphasis on the fifth storey than the parapet height. The experts agreed the fifth storey would be visible from certain vantage points along New South Head Road. Her key concern was the buildings impact on the corner of Cranbrook Road in relation to buildings to the east as well as to the west along New South Head and down Cranbrook Road. 46 In relation to the recess in the northern façade and the setback of the north east corner. Mr Harrison noted that the building would be nearly double the width of other buildings in the block but that these measures meant that the development would read as two distinct elements and would reduce its overall bulk. Ms Young and Mr Rowan considered that this would be achieved from oblique angles but it would still appear as one mass when viewed directly. Ms Young also raised concerns about the length of the building when viewed down Cranbrook Road from New South Head Road as illustrated in the photomontage (exhibit H).

Findings 47 I accept that the proposal has employed measures to mitigate the impacts of bulk and height. The three main measures and the ones in dispute between the experts as to their success are the setback of the fifth floor (level 7), the recess in the northern façade and the set back of the north west corner from its boundary with 597 New South Head Road. 48 While I accept that these measures have reduced the perception of height and bulk this is not sufficient to conclude that the proposal is acceptable within the context of New South Head Road, based on both an assessment of numerical indicators and the visual aids provided. 49 The combined effect of the height of the parapet, the fifth floor and the buildings width, result in it appearing as bulkier than other buildings in the block along New South Head Road. I accept that a single storey variation in height would not of itself have an adverse impact in the context of buildings to the west along New South Head Road. However, the combined effect of the increased height of both the parapet and its overall height, the width along New South Head Road and length along Cranbrook Road are significantly different to the buildings in the block and to those to the east along New South Head Road. 50 The smaller scale of buildings to the east along New South Head Road and the general increase in building height to the west negate the rationale that the site requires a larger building because of its corner location. 51 I do not accept that the greater height of 587 New South Head Road can be used as an argument for an increased height on this site. This building and the site will not be read directly in the same context as they are at opposite ends of the block. The immediate and most visible context for this site is the two adjoining buildings to the west and those opposite to the east. In this immediate context the building is much larger and its overall bulk inappropriate. 52 Clearly the fig trees are the dominant element in the streetscape and they limit views of the proposal. However, the building cannot rely on the trees for screening. I note that generally only the roof of the existing building appears above the trees in Cranbrook Road, whereas a much larger part of the proposal will be seen. This adds to the perception of bulk.

Streetscape impact - Cranbrook Road 53 The experts generally agreed that the character of Cranbrook Road was different to that of New South Head Road, being one of buildings with large setbacks and landscaping. Mr Harrison also considered there to be a different character between the east and west sides of the street in the location of the site. In his opinion the proposal improved the streetscape when compared to the existing hotel, particularly the greater setbacks and landscape treatment. 54 Mr Harrison stated that due to the change in level between the road and the site and the rise and curve of the road, 1 Cranbrook Road related more to development along New South Head Road than to Cranbrook Road. He considered that the change in height and recess in the Cranbrook Road elevation adequately addressed the site's relationship to the adjoining residential zone. He also considered it appropriate that the development read as one building with consistent architectural language. 55 Ms Young considered that as 1 Cranbrook Road was zoned residential, development on this part of the site should relate to the residential area and should form a clear transition in both its scale and its design between the development on New South Head Road and the residential development to the south and east. She considered the proposal to be a contiguous building along Cranbrook Road with little softening from landscaping or setbacks. In her opinion this resulted in an unacceptable relationship. Mr Rowan generally agreed with this opinion.

1 Cranbrook Road relates more to the rest of the site along New South Head Road than to residential development along Cranbrook Road. The development acts as a transition between these two areas through the change in height and the recess. I do not accept that development on this part of the site needs to be further distinguished in its architectural treatment from the rest of the development to reflect the residential character of the street. 56 However, the relationship of the building form to open space is problematic. The character of the street is buildings with generous landscaped setbacks. The landscaping at the rear of the site and along Cranbrook Road is minimal. This combined with the length of the building, the loading bay, car park entrance and setback of the building would impact on the streetscape. This urban setting may be appropriate at the corner of New South Head Road but not for 1 Cranbrook Road. As the existing buildings are to be demolished it is not appropriate to compare what is proposed against the existing situation but rather against the desired future character for the area. In this regard the proposal is deficient.

Landscaping and open space 57 The experts agreed that landscaping and open space served two main purposes, firstly internal to the site, to provide amenity for residents of a development and secondly, external to the site, to provide an appropriate setting by framing and softening a building. Further they agreed that its purpose was not to hide a building and that the bulk and appearance of a building should be acceptable without the need to rely on landscaping. 58 The plans were amended during the hearing and the experts generally agreed that the extent of open space, including the terrace areas of the building as well as the ground level areas were adequate for the residential care facility. 59 The experts disagreed on the adequacy of the buildings landscape setting, particularly the extent of deep soil planting. Ms Young considered that the inadequate set backs and deep soil planting provided little opportunity to provide landscaping of a scale that would soften the building and provide an appropriate setting. She considered that a development should provide its own landscaping in its site and not "borrow" amenity from adjoining properties or the public domain. Mr Rowan generally agreed with this position. 60 Mr Harrison, agreed with the principle that a development should provide its own landscaping on site but stated that that it was not necessary in this case due to the extensive frontage of the site and the number of large trees on adjoining land and that there was currently very little landscaping on the site. He recognised that there was no room on the site for significant landscaping but stated that the fig trees in the street and the large camphor laurel tree in the grounds of Rothesay combined with the proposed shrubs and small tree would effectively screen the development.

Findings 61 The proposal provides approximately 131sqm or 7% of the site as deep soil landscaped area. The open space is below the criteria in SEPP Seniors Living of 25sqm per residential care bed. If the above ground open space, including the private terraces and communal areas is included the proposal provides approximately 17sqm per bed. With amendments to the plans this amount is sufficient to meet the needs of the residents. 62 The extent of site coverage of the building both above and below ground limits opportunities for substantial landscaping. While this may be appropriate at the corner of New South Head Road and Cranbrook Road where the existing context is largely urban, and relies on street trees for it landscape character. It is not appropriate for the Cranbrook Road frontage, particularly as it is viewed from the residential area to the south. Nor does it provide an appropriate interface with Rothesay and the adjoining building at 597 New South Head Road. The proposed screening will do little to soften the appearance of the building and I do not accept the argument that it is acceptable to "borrow" amenity from adjoining street trees or landscaping on other properties. I also do not accept that the test for suitability is whether the proposal is an improvement on the existing situation as these buildings are to be demolished. The proposal is a much larger building, in length, width and height than what currently exists on the site. It should be appropriately soften and framed by its own landscaping to better fit into the existing and desired future character of Cranbrook Road.

Impact on the heritage significance of Rothesay 63 The main concern was the impact of the development on the views from Rothesay towards the water, and a consequent loss of the connection of the house to the water. The experts agreed that this is part of Rothesay's significance, being originally a marine villa with a frontage to Rose Bay. 64 The connection has been reduced by earlier subdivision of the land, the development of residential flat buildings and fig tree planting along New South Head Road, as well as the planting within the site itself, which screens surrounding development. 65 The proposal will remove one of the four water glimpses that currently remain. Mr Brooks considered this to be a minor impact whereas Mr Rowan considered it to be moderate and to represent a "further erosion of what was originally a strong association". 66 Both experts agreed that the proposal would have a visual impact on the setting of Rothesay as the height of the building would be visible above the trees. Mr Brooks considered that the significance of the item to be predominantly the house and that the garden was an evolved setting with little original planting. He therefore concluded that the visual impact would not effect the heritage significance of the item. 67 Mr Rowan noted that the listing of the item included the house and its gardens, which provide a landscaped setting for the house. They both agreed that the large trees on the Rothesay site mitigated the visual impact of the proposal. 68 Mr Harrison considered that there would be a visual impact on Rothesay that was reduced by the planting. He recommended a further tree be planted in the grounds of Rothesay to eliminate a "gap" in the planting. Figures 23 and 24 in Mr Harrison's Statement of Evidence (exhibit B) indicate the visual impact of the proposal.

Findings 69 Development around Rothesay has resulted in perimeter planting of large trees that effectively reduce the visual impact. These buildings are generally below the canopy level of trees, and only limited views of the roofs are visible. Rothesay has effectively turned in on itself to protect its amenity by providing a garden setting. This has reduced views to the water to a few glimpses. The proposal will further reduce these views but the impact on the heritage significance of Rothesay is not of itself a reason for refusal. 70 While the impact on the setting of Rothesay may not be considered as an impact on its heritage significance there was general agreement that it would have a visual impact which is mitigated largely by the trees within the grounds of Rothesay. 71 I find this visual impact to be unnecessary because I have already found the extra storey to be inconsistent with the height of other buildings along New South Head Road. From Rothesay the extra storey will be visible above the tree canopy to a greater extent than the other buildings. In addition, the evidence of the experts is that the bulk of a development should be acceptable in its own right and not be reliant upon landscaping. The bulk of the proposal clearly depends on landscaping within Rothesay to be screened to reduce its impact. Without this landscaping the height and bulk of the proposal is unacceptable from Rothesay. It also should not rely on landscaping on adjoining sites while providing little effective landscaping on its own site.

Impact on trees 72 The arborists agreed that there is the potential for the development to have an adverse impact on the fig tree adjacent to the frontage of 599 New South Head Road and the lillypilly in Cranbrook Road due to changed water conditions and/or root damage. However, they stated that the impact could be minimised to an acceptable level due to the implementation of specific construction and design methods and full compliance with a tree management plan. They agreed that these conditions should also apply to the Camphor Laurel tree on Rothesay. I accept these conclusions.

Residential amenity 73 The parties disagreed on the internal amenity of some of the units. Some of these concerns were addressed by amendments to the plans. The main area of disagreement remained the amenity of the west facing units. Due to their proximity to the boundary and the adjoining residential flat building at 597 New South Head Road a combination of adjustable and fixed louvred screens are proposed to these terraces. These screens limit any privacy impacts but in Mr Rowan's opinion reduce the amenity, access to light and outlook to these terraces and to the rooms. Mr Harrison and Mr Brotherhood considered the amenity to these units to be greater than the normal expectation for residential care facilities. 74 The screens will reduce the amenity of the units. While the units may provide greater amenity than the majority of existing residential care facilities. I do not accept that the current requirement for these facilities, particularly in an area such as Rose Bay, envisages less amenity than other forms of permanent residential accommodation. The need for the screens would be reduced if there were greater setback and opportunity for planting. However, of itself this would not be a reason to refuse the application. Parking 75 Mr Hazell considered that the parking provided would meet the operational needs of the development. He noted that the amount complied with the Seniors SEPP and the Roads and Traffic Authority figures which are based on surveys of similar facilities. He considered that the current hotel and restaurant use of the site contributed to the demand for on street parking as no off street parking is currently provided. Public access to the hydrotherapy pool could be managed by conditions limiting the number of users and restricting access during staff change over periods. The applicant has accepted these conditions and council did not press parking as an issue. Orders 76 For the above reasons the Orders of the Court are:

2. The development application (DA 504/2005) for a residential care facility at 599 - 601 New South Head Road and 1 Cranbrook Road, Rose Bay is refused.

3. The exhibits, except exhibit 1, may be returned.

      Annelise Tuor
      Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.