HB & B Property Pty Ltd v City of Parramatta Council

HB & B Property Pty Ltd v City of Parramatta Council - [2021] NSWLEC 1393 - NSWLEC 2021 case summary — Zoe

[10]

Design requirements

Clause 31 requires me to take into consideration the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development (Guideline).
Clause 32 then provides that consent must not be granted unless I am satisfied that "adequate regard has been given to the [design principles set out in cll 33-39 of SEPP Seniors]". I will reproduce selected design principles which relate to the contentions which are pressed: 33 Neighbourhood amenity and streetscape 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 … (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 … 34 Visual and acoustic privacy The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by - (a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and (b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.

[15]

Further particulars

The written and oral objections from owners and residents of 49 Murray Farm Road indicated, and it was apparent from the site view, that there is an enjoyable area of outdoor living in the rear yard and deck to this residence. These spaces enjoy a northern orientation and have a very pleasing outlook to the north and north-east direction with tall trees pleasantly filtering wider views. It was also notable during the site inspection that an existing garage structure at the rear of 13 Watton Road, built close to the shared rear boundary with 49 Murray Farm Road, disrupts the outlook at present.
The proposal would construct a two-storey (western) wing; offset from but generally along this common boundary (ie the rear boundary of 49 Murray Farm Road). Some particulars of this wing are as follows.
The construction would involve clearing and removal of the existing garage, and the wing would be in cut and the ground level would sit below the rear yard of 49 Murray Farm Road. To assist in evaluation, the experts agreed that the ridge of the roof of the western wing would be about 1.5m above the ridge of the existing garage at the rear of 13 Watton Road.
The proposed basement would be offset 3m, with the external wall of the six south-facing rooms on the upper level of this wing offset 4.4m from the boundary. The windows on the upper level would be framed by a privacy screen which juts out a little (Ex C DA9-02). Privacy would be effected by a "glass frit" pattern on each window (Ex C DA9-01).
Planting is proposed within the site along the common boundary with 49 Murray Farm Road. That is to say, both the southern boundary (ie adjacent to the western wing) and the eastern boundary of 49 Murray Farm Road. The planting regime involves a layered planting approach. Near the southern boundary of 49 Murray Farm Road, there would be a 3m high screening hedge on the site, at grade, along a 1.8m high boundary fence. Then sitting lower (by some 1.5m) would be taller plantings (blueberry ash (10m mature height) and hibiscus (5m mature height)) (Ex E LA08 and LD05).
There is a courtyard area proposed adjacent to the eastern boundary of 49 Murray Farm Road, in the area of, and below, the rear yard of that property. Beyond the courtyard, buildings would be setback 12m from the property boundary (Ex C DA 9-22). South of the courtyard, there is a proposed building element, more or less aligning with the existing building occupying 49 Murray Farm Road which is setback 4m from the common boundary. While for the most part further offset, the proposed built form, as perceived along the eastern boundary, would sit at a similar roof ridge height to the western wing (Ex C DA2-04). It is also notable, in regard to the eastern boundary relationship, that a large eucalypt would be retained in this area, along with a smaller tree. Otherwise again, a 3m high-screen hedge would be planted along the 1.8m boundary fence. Advanced plantings, generally in regard to this residential interface, were proposed.

[17]

Consideration

There are two problems faced by the Applicant which it seeks to address by way of its purposeful landscape detailing. The first is to help mitigate the visual privacy impacts of the upper level of the west wing. The proposed "glass frit" was not familiar to the experts, but my impression was of an ambition to allow natural light into, and at least, some outlook from the occupied rooms to assist in the amenity that might be enjoyed from within the rooms (window detailing was provided at Ex C DA 9-01 and 9-02). The window sizing was relatively large and it was indicated that these rooms were more than bedrooms and would be occupied for considerable periods by residents (and one might assume quite occasionally by visitors).
The second problem is the mitigation of the visual impact of the length of the continuous building which might otherwise be apparent from the rear of 49 Murray Farm Road.
I accept that the provisions of cl 40(4)(c) do not apply (that a building located in the rear 25% area of a site must not exceed 1 storey in height), but believe it not unreasonable for Council to suggest the control as worth some note in a merits analysis. However, the concern is not only the height of the building along the western wing at the offset of 4.4m, but the extent of the massing of this height. The massing along the entirety of the boundary to 49 Murray Farm Road is atypical and impactful as a consequence of the western wing alone, but the building returns around the eastern boundary to complete a sense of enclosure, albeit further offset towards the east. The effect is to take away considerably from the current pleasing and more open outlook. The visual privacy and enclosure of the proposed building would be screened out over a few years by landscaping, but then the landscaping would itself effect a sense of quite complete enclosure.
Here I acknowledge any outlook across neighbouring property is at risk in a setting such as this. I also acknowledge the disruption of outlook from the existing garage (something I consider to be modest rather than overbearing and occupying a somewhat narrow field of view). But the completeness of the enclosure and loss of outlook cannot be seen as bringing a harmonious outcome mindful of SEPP Seniors' own standards and the principles indicated in Section 4 of the Guideline. The outcome might be improved by a lower level building along the western wing and responsive landscaping (some sightlines would seem to be available over a single storey western wing), or some otherwise breaks in visual massing to the north-east as perceived from 49 Murray Farm Road.

[18]

The visual presentation of the proposal in the streetscape

I agree with the experts that the presentation of the proposal to Watton Road is satisfactory. This is because the proposal only steps up to its greater height at a considerable distance from the neighbouring boundary, and the otherwise prominence of existing vegetation and extensive proposed landscaping and mounding in the large area of communal space (Courtyard 4) proposed in the low-lying land in the Watton Road environs. In turn, the key concern is in regard to the Murray Farm Road streetscape.
There was some attention to the Court's planning principle on assessing compatibility of "medium density" seniors housing in low density residential settings arising in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council (2003) 131 LGERA 383; [2003] NSWLEC 268 (Wombarra). Roseth SC cited four principles in Wombarra, the last three of which have more relevance here: "16 The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping. 17 The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site's edges to destroying it and planting new vegetation. 18 The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity."
The key concern is in regard to whether the building would unreasonably dominate the streetscape. While the building height is considered acceptable, the proposed building length is about double that of the residence at 49 Murray Farm Road. Council submits that the "generous breaks" referenced in the second of the Wombarra principles are not provided.
While the proposal would sit more harmoniously in the streetscape were there less continuity in the massing presented to Murray Farm Road generally, I accept the Applicant's position on this point. Here I note, mindful of Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) at [26], the importance of the relationship created by building height, setbacks and landscaping. There is a 13m front setback (a little greater than 49 Murray Farm Road) which provides considerable opportunity for landscaping. But more important is the existence of the larger eucalypt and small copse of other existing vegetation central to the front boundary. This existing landscape features and proposed setback landscaping, along with the architectural form (including the modest visual break in the central area of the front façade) and relatively low profile of the building itself, in combination, offsets considerably the lack of a "generous" physical break. The proposal can be seen in the photomontages to respond to the nearby residential development and, while clearly a different form of building than the others, could sit as a reasonably harmonious feature in the street setting, in my opinion.

[19]

Solar access for residents

Clause 35 of SEPP Seniors provides as follows: The proposed development should - (a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.
Mr Wan was concerned that in attempting to achieve a development yield while meeting the required building height standard, the extent of excavation subsequently involved, meant a number of the units were "subterranean" and had inadequate solar daylight, sunlight and natural ventilation.
Mr Black drew attention to the fact that SEPP Seniors does not contain any minimum requirements for solar access in regard to residential care facilities. He distinguished this from the controls applying to individual living units under SEPP Seniors. He believed that (Ex 3, par 42): "…The nature of these facilities is such that residents have common areas to congregate (outdoor and indoor) to obtain exposure to weather depending on the time of year. This is different to (self-contained dwellings) for example which are designed as independent dwellings and required to achieve 3 hours solar access to 70% of dwellings during mid-winter. The SEPP was intentionally drafted to not require a minimum quantum of solar access to (residential care facilities)."
During the hearing, there was a very close analysis of the proposed solar access features, both within rooms and in shared common areas located indoor and outdoor. While I acknowledge that some of the rooms are clearly less than ideal, mindful of the terms of the provisions of cl 35 and its reference to "daylight", I accept Mr Black's comments on the differing needs of residential care residents. My overall impression was that there was reasonable access to sunlight both indoors and outdoors during mid-winter. While acknowledging that many of the rooms would not have such sunlight, there was access to daylight and not so far to go to access the sun.

[21]

Conclusion

SEPP Seniors seems to have two principal concerns of relevance here. First is in regard to increasing the supply of housing for seniors and people with a disability in well located areas, including the frail and those needing special care, a group particularly targeted with this proposal. Second is that of encouraging good design, including that built form responds to its setting. The interrelationship seems to me to be important. That is, that this increase to supply, which includes the overriding of local planning controls (in this instance a prohibition to the use in the R2 Low Density Residential zone), goes hand in hand with a requirement for design responsiveness.
The proposal proffers a significant level of additional supply of seniors housing and, in particular, that relating to residential care. This is of public interest. An excerpt from the Central City District Plan, prepared by the Greater Sydney Commission, was tendered into evidence as Ex H. Exhibit H indicates significant growth in seniors population, including in the general environs of the site: "A 183 per cent proportional increase in people aged 85 and over, and a 95 per cent increase in the 65-84 age group, is expected by 2036. This means 16 per cent of the District's population will be aged 65 or over in 2036, up from 11 per cent in 2016. Parramatta and The Hills local government areas have the largest projected growth in the 65 to 84 age groups."
Exhibit H also references an expected increased demand for local aged care facilities, including for people with dementia and "the frail aged", groups which might benefit from the services of facilities such as proposed here.
There is considerable attention to the question of compatibility with neighbouring development in the matters warranting consideration under SEPP Seniors. While points of attentions are cll 33 and 34 (see [18]), and whether "adequate regard" has been given to neighbourhood amenity and streetscape and "visual and acoustic privacy", as itemised; there is also a need, mindful of cl 29 and as detailed at [15] to take into consideration the "impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing (land) uses".
There are many intricacies to the design of the proposal, and some successes in relation to architectural and landscape details when ambitions to supply residential care accommodation are concerned. But as foreshadowed in Project Venture (at [25]), the impact of the proposal on the amenity of 49 Murray Farm Road can be relatively objectively assessed. In this instance, it seems to me there would be a severe impact on the amenity enjoyed at 49 Murray Farm Road as a consequence of the more or less complete enclosure of the rear and eastern side of the property by the proposed development. The sense of openness in the rear yard would be almost entirely lost.
Of particular importance here, I am not convinced that design changes which give more sympathetic regard to the amenity of 49 Murray Farm Road are not available without unduly prejudicing the supply of residential care accommodation. In turn, it seems to me that adequate regard has not been given to neighbour amenity and the proposal is not consistent with the ambitions of SEPP Seniors in its current form.
In closing submissions, the Applicant offered me the opportunity of lowering, or otherwise controlling, the landscape if I was concerned about its density. Unfortunately, it is not as easy as this, as the proposed landscaping is essential as a mitigation treatment for the proposed unbroken building presentation which would otherwise be apparent from the rear of 49 Murray Farm Road.

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