CITATION : Incoll Pty Limited v Warringah Council [2006] NSWLEC 714
[2]
APPLICANT:
PARTIES : Incoll Pty Limited
RESPONDENT:
Warringah Council
[3]
KEY ISSUES: Development Application :- Desired future character
[4]
Warringah Local Environmental Plan 2000, (WLEP)
LEGISLATION CITED: State Environmental Planning Policy - Seniors Living 2004, (SEPPSL)
Environmental Planning and Assessment Act 1979, ss79C and 97
[5]
CASES CITED: GPC No 5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268;
Mete v Warringah Council [2004] NSWLEC 273
[6]
APPLICANT:
Mr G N McKee, solicitor
SOLICITORS:
LEGAL REPRESENTATIVES: McKees
RESPONDENT:
Mr S H Patterson, solicitor
SOLICITORS:
Wilshire Webb
[7]
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
[8]
10522 of 2006 - Incoll Pty Limited v Warringah Council
[9]
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Warringah Council (the council) of a development application to demolish the existing dwellings and to construct an eighty-two (82) bed seniors living 'residential care facility', including basement car parking, landscape works and ancillary structures at Lots 46 to 50, DP 7568, Nos 5-13 King Street, Manly Vale.
2 I visited the land in company with the parties on the morning of the first day of the hearing and carefully considered the relationship of the proposal with the desired future character.
3 I have concluded that the consent orders agreed between the parties may issue.
The land
4 The land is situated on the southern side of King Street, about 72 metres west of its intersection with Condamine Street. It comprises five (5) allotments of land and is rectangular in shape with an area of 4,295m2. It has a northern frontage of 60.96m to King Street, an eastern boundary of 70.465m, a southern (rear) boundary of 60.96m, and a western boundary of 70.455m. The land has a gradual fall of about 5.5m and slopes down from the northwestern corner to the southeastern corner. The King Street frontage has a cross fall of about 2.5m down from west to east.
5 Vehicular access to the land is provided via five (5) vehicular crossings on the King Street frontage of the five (5) existing dwelling houses. These dwelling houses are setback back between 7.5m and 19.3m from the street frontage, with an average setback of 9.0m. Ancillary structures are located in the rear of each of the residential allotments and two of the residential allotments (Nos 11 and 13 King Street) have single-storey 'granny flats' located at the rear. Some trees are growing at the rear of some of the dwellings and also within the front setback to Nos 9-13 King Street.
6 To the north of the land, on the opposite side of King Street, are a number of single detached dwelling houses varying in height from single-storey to two-storeys. A seniors living multi-unit housing development with twenty (20) apartments is under construction at Nos 8-14 King Street directly opposite the subject land. St. Peters Anglican Church is located directly to the east of the subject land. The church comprises a brick veneer and tiled A-frame construction together with a single-storey brick veneer and tiled rectory at the rear. The Church Hall is identified as an item of local heritage significance. Further to the east are a number of local shops forming a commercial strip fronting Condamine Street, a Catholic church, community centre and a mixture of single detached dwellings and residential flat buildings.
7 To the rear of the land and to the south are single detached dwellings of single-storey and two-storey height.
8 A single-storey detached dwelling house is located directly to the west of the land. A residential care facility, The Kings Court Christian Village, is located about 35m to the west.
Relevant planning controls
Warringah Local Environmental Plan 2000, (WLEP)
9 The proposal is permissible with consent as a Category 2 development as 'housing for older people or people with disabilities' in the G3 locality under the provisions of the WLEP, [Note: Exhibit 6, Part 4, and Schedule 16].
State Environmental Planning Policy - Seniors Living 2004, (SEPPSL)
10 Under the provisions of the SEPPSL the proposal is also permissible with consent as a 'residential care facility'. [Note: Clause 11 SEPPSL]. The applicant may elect to lodge the development application under either the WLEP or the SEPPSL in accordance with the decision of his Honour Talbot J, dated 31 May 2004, [Note: Mete v Warringah Council [2004] NSWLEC 273]. In this case the applicant chose to lodge under the SEPPSL.
11 Thus the following provisions of SEPPSL are relevant:
· Chapter 3, Part 2 (Site related requirements),
· Chapter 3, Part 3 (Design requirements),
· Chapter 3, Part 4 (Development standards to be complied with),
· Chapter 3, Part 7 (Development standards that cannot be used as grounds to refuse consent).
[10]
12 Clause 31 of SEPPSL states:
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:
providing building setbacks to reduce bulk and overshadowing, and
using building form and siting that relates to the site's land form, and
adopting building heights at the street frontage that are compatible in scale with adjacent development, and
considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and
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
embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
retain, wherever reasonable, major existing trees, and
…[not relevant]
[11]
13 Despite the development application having been lodged under the provisions of the SEPPSL, the provisions of the WLEP may be taken into account in determining the likely future character of the area and assessing the fit of the proposal in the environment.
14 The subject land is located within the G3 - Manly Lagoon Suburbs Locality under WLEP. An abutting locality to the west is the G5 - Manly Vale Centre Locality, a commercially orientated locality.
15 The 'Desired Future Character - G3 - Manly Lagoon Suburbs' is:
The Manly Lagoon Suburbs locality will remain characterised by detached style housing with a pocket of apartment style development in landscaped settings interspersed by a range of complementary and compatible uses. The development of further apartment buildings will be confined to the "medium density areas" shown on the map. Substantial regional parklands and bushland will remain significant elements of the locality.
Future development will maintain the visual pattern and predominant scale of existing detached houses in the locality. The street will be characterised by landscaped front gardens and consistent building setbacks. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.
The relationship of the locality with the surrounding bushland will be reinforced by protecting the enhancing the spread of indigenous tree canopy and preserving remnants of the natural landscape such as rock outcrops, bushland and natural watercourses. The use of materials that blend with the colours and textures of the natural landscape will be encouraged. Development on hillsides, or in the vicinity of ridgetops, will integrate with the natural landscape and topography.
The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control provided in clause 39.
16 The built-form controls within the G3 locality under the WLEP are determined having regard for the following requirements:
Building Height: Buildings are not to exceed 8.5m to the ridge (measured from natural ground level) and 7.2m to the upper ceiling (measured from natural ground level).
[12]
Front Building Setback: The minimum front building setback is 6.5 metres.
[13]
Rear Building Setback: The minimum rear building setback is 6 metres.
[14]
Side Boundary Envelope and Side Setback: The minimum side setback is 0.9m and the side boundary envelope is determined by 45-degree projecting planes from a height of 4 metres above natural ground level at the side boundaries.
[15]
Landscaped Open Space: The minimum area of landscaped open space is 40% of the site area.
The proposal and its history
17 Development application No 2005/0550 was lodged with the respondent council on 8 June 2006 to demolish the existing dwellings and to construct an eighty-two (82) bed seniors living 'residential care facility', including basement car parking, landscape works and ancillary structures on the land.
18 The council received amended plans on 22 June 2006. The Court-appointed town planner prepared a preliminary report in early September and the applicant responded by further amending the plans.
19 The proposed two-storey 'residential care facility' would comprise:
· eighty-two (82) bed suites, of which eighteen (18) suites would be for residents with dementia and aged persons nursing care;
· communal living and dining areas, staff rooms, medical rooms, administration rooms, and serviced kitchen and laundry facilities;
· a centrally landscaped courtyard;
· a single-storey wing is proposed off the south-western corner of the building;
· basement level that would provide car parking spaces for thirty-one (31) vehicles, a physiotherapist room, a meeting room, staff lockers and toilet facilities, staff lunch room, laundry, kitchen, maintenance room, garbage room, service bay, kitchen stores, equipment stores, water tanks and building services rooms.
20 The building would be constructed of painted and rendered masonry walls with a pitched 'Colorbond' steel roof with vehicular access from King Street on the eastern side of the land.
21 The proposal would not comply with the WLEP height standard; rear setback standard (in part); and the landscaped open space standard. However, the development application has been submitted, under SEPPSL, and this latter instrument would override any inconsistent provision of the local environmental plan, [Note: Clause 5(3) SEPPSL]. In this regard:
· The proposed development would meet the 'deemed to satisfy' standards for 'height', under cl 79(a) SEPPSL;
· The provisions of SEPPSL relating to 'height', 'storeys', and 'height in the rear 25% of the site' under cl 38(4) do not apply, since it was agreed between the parties that residential flat buildings are not prohibited in the G3 locality;
· The proposed development would not comply with the 'deemed to satisfy' standard for landscaped area under cl 79(a) of SEPPSL. This standard provides that if the proposed development provides 25m2 landscaped area per bed (in a 'residential care facility'), then consent cannot be refused on grounds of inadequate landscaped area. The proposed development does provide 22.1m2 of landscaped open space per bedspace, including the area of the central courtyard;
· There are no development standards for side setback or front setback for 'residential care facilities', under SEPPSL. Merit considerations apply, however, under cl 31 of SEPPSL.
Notification
22 The application was notified to nearby owners and occupants under the provisions of the former Development Control Plan No 1 (Feb 2000) and cl 23 of WLEP; was advertised in the Manly Daily on Saturday 13 August 2005; and a sign was placed on the site from 11 August 2005 for a period of 14 days.
23 Notification letters were also sent on 11 August 2005 to forty (40) nearby and adjoining property owners and occupiers.
24 The council received two (2) submissions in response to the notification, each raising objections to the proposal.
25 The Application Determination Panel initially determined the development application as follows:
The Panel deferred the above application in order for the applicant to provide amended plans/details, which addresses the following:
· Poor amenities of units on western side ground and first floor;
· Landscaping, useability and solar access to courtyard;
· Vertical Shadow analysis on the proposal.
26 The council received amended plans on 22 June 2006 that included:
· Vertical shadow analysis;
· Change to increase windows size and style to increase solar access to western side ground accommodation rooms; and
· Statement of nursing care outlining daily routine of patient care and general passive requirement only for landscaping.
27 The Application Determination Panel on 13 July 2006 recommended:
The Panel resolved to defend the Class I (Deemed Refusal) Appeal lodged in the Land and Environment Court on the grounds of the following:
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 and Clause 12(2)(b) of Warringah Local Environmental Plan 2000, the proposed development is not consistent with the Desired Future Character of the G3 Locality - Manly Lagoon Suburbs for the following reasons:
(i) The proposal does not maintain the visual pattern and predominant scale of existing detached style housing in the locality;
(ii) The means of providing landscape open space fails to reinforce, protect and enhance the spread of an indigenous tree canopy within the locality.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, Clause 3 of Warringah Local Environmental Plan 2000 and Clause 31 of State Environmental Planning Policy 2004 - Seniors Living, the proposal fails to recognise the desirable elements of the localities desired future character under the G3 Locality - Manly Lagoon Suburbs. In this regard, the proposed development does not contribute to the quality and identity of the area.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 and Clause 12(2)(a) of under the Warringah Local Environmental Plan 2000, the proposed development does not comply with the building height controls for the G3 - Manly Lagoon Suburbs Locality. In this regard, the proposal exceeds the 8.5 metre maximum building height.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 and Clause 12 (2)(a) of under the Warringah Local Environmental Plan 2000, the proposed development does not comply with the rear building setback control for the G3 - Manly Lagoon Suburbs Locality. In this regard, the proposal encroaches within the minimum 6-metre rear setback.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, and Clause 79(a) of State Environmental Planning Policy 2004 - Seniors Living, the proposed development does not comply with the maximum building height of 8.0 metres.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, and Clause 79(c) of State Environmental Planning Policy 2004 - Seniors Living, the proposed development does not comply with the landscaped area requirements for residential care facilities.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, and Clause 12(1)(a) of Warringah Local Environmental Plan 2000 the proposed development is inconsistent with General Principle 63 - Landscaped Open Space in that:
(i) The landscaping does not enable the establishment of appropriate plantings with the front, side and rear setbacks to maintain and enhance the streetscape and the desired future character of the locality,
(ii) The landscaping does not enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale, and
(iii) The proposed development does not provide sufficient amenity and usability of landscaped areas.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, and Clause 12(1)(a) of Warringah Local Environmental Plan 2000 the proposed development is inconsistent with General Principle 66 - Building Bulk in that the building does not have an architectural scale which is consistent with adjoining and nearby buildings.
[16]
Development application No 2005/0550 lodged with the respondent council on about 1 June 2006 to demolish the existing dwellings and to construct an eighty-two (82) bed seniors living 'residential care facility', including basement car parking, landscape works and ancillary structures at Lots 46 to 50, DP 7568, Nos 5-13 King Street, Manly Vale, is approved subject to Conditions 1 to 110 in Annexure A.
[17]
The exhibits except for Exhibits A, B, C, D, E, F, G, 2, 3, 7 and 8 are returned.
[18]
The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/
[19]
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.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, and Clause 12(1)(a) of Warringah Local Environmental Plan 2000, the proposed development is inconsistent with the General Principle 63A - Rear Building Setback in that:
(i) The proposed encroachment into the 6-metre rear setback compromises the sense of openness in rear yards,
(ii) The proposed encroachment into the 6-metre rear setback does not provide adequate provision for screen landscaping,
(iii) The proposed encroachment into the 6-metre rear setback does not maintain the visual continuity of buildings and provide for open rear gardens, and
(iv) The proposed encroachment into the 6-metre rear setback restricts the available deep soil landscaping and compromises opportunities for the planting of substantial native trees.
Pursuant to Section 79(1)(c) of the Environmental Planning and Assessment Act 1979, the proposed development represents an overdevelopment of the site in that:
(i) The proposal does not comply with the building height, landscaped open space and rear setback requirements,
(ii) The proposed development provides poor amenity for rooms on western side of the building at the ground and first floors, with regard to natural light, and
(iii) The streetscape presentation of the development does not reflect the detached style required by the desired future character statement.
The council's decision
28 When the appeal was filed the council had not determined the application and it was deemed refused.
The hearing
29 The appeal was filed on 20 June 2006.
30 The objectors were notified of the appeal. On behalf of the council Mr P Fuller, objector of Willow Breeze Pty Limited and owner of Nos 10 -14 King Street opposite the subject land gave evidence on site.
31 The Court-appointed town planner was Ms M D Laidlaw.
32 Mr S Findlay, Acting Manager - Major Developments prepared the statement of basic facts dated 27 July 2006.
The issues
33 On 27 July 2006, the council filed a statement of issues:
Desired Future Character
The proposed development should not be approved as it is not consistent with the desired future character of the G3 Manly Lagoon Suburbs Locality as required by Warringah Local Environmental Plan 2000 ("WLEP 2000"). (Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 ("EP&A Act") and Clause 12 (3)(b) of WLEP 2000).
Particulars
a. The proposed development is not consistent with the Desired Future Character Statement of the G3 Locality - Manly Lagoon Suburbs in that:
(i) The proposed development does not maintain the visual pattern and predominant scale of existing detached style housing in the locality; and
(ii) The proposed development does not reinforce the relationship of the locality with the surrounding bushland by protecting and enhancing the spread of an indigenous tree canopy within the locality.
The proposed development should not be approved as it is not consistent with the desired future character of the locality as required by State Environmental Planning Policy (Seniors Living) 2004 ("SEPP SL"). (Section 79C(1)(a)(i) of the EP&A Act, Clause 3 of WLEP 2000 and Clause 31 of SEPP SL).
Particulars
a. The proposal fails to recognise the desirable elements of the localities desired future character under the G3 Locality - Manly Lagoon Suburbs in that the design does not maintain the visual pattern and predominant scale of existing detached style housing in the locality to ensure that the proposed development contributes to the quality and identity of the area.
Building Height
The proposed development should not be approved due to its excessive building height. (Section 79C(1)(a)(i) of the EP&A Act, Clause 79(a) of SEPP SL and Clause 12(2)(a) of WLEP 2000).
Particulars
a. The maximum building height of the proposed development is 9.8 metres;
b. The proposed development exceeds the 8.0 metre maximum building height referred to in Clause 79(a) of SEPP SL; and
c. The proposed development exceeds the 8.5 metre maximum building height set out under the building height controls for the G3 Locality - Manly Lagoon Suburbs.
Rear Building Setback
The proposed development should not be approved as it does not comply with the rear building setback control for the locality. (Section 79C(1)(a)(i) of the EP&A Act and clause 12 (2)(a) of WLEP 2000).
Particulars
a. The proposed development has a minimum rear set back of 3.1 metres;
b. The proposed development does not comply with the 6.0 metre rear building setback set out in the built form controls for the G3 Locality - Manly Lagoon Suburbs.
The proposed development should not be approved as it is not satisfactory having regard to General Principle 63A which relates to rear building setbacks. (Section 79C(1)(a)(i) of the EP&A Act and clause 12(1)(a) of WLEP 2000).
Particulars
a. The proposed encroachment into the 6-metre rear setback compromises the sense of openness in rear yards;
b. The proposed encroachment into the 6 -metre rear setback does not provide adequate provision for screen landscaping;
c. The proposed encroachment into the 6-metre rear setback does not maintain the visual continuity of buildings and provide for open rear gardens; and
d. The proposed encroachment into the 6-metre rear setback restricts the available deep soil landscaping and compromises opportunities for the planting of substantial native trees.
Landscaped Area
The proposed development should not be approved as it does not include sufficient landscaped area. (Section 79C(1)(a)(i) of the EP&A Act and clause 79(c) of SEPP SL).
Particulars
a. The proposed development does not include a minimum of 25 square metres of landscaped area per residential care facility bed as referred to in Clause 79C of SEPP SL.
Landscaped Open Space
The proposed development should not be approved as it is not satisfactory having regard to General Principle 63 which relates to landscaped open space. (Section 79C(1)(a)(i) of the EP&A Act and Clause 12(1)(a) of WLEP 2000).
Particulars
a. The proposed landscaping does not enable the establishment of appropriate plantings with the front, side and rear setbacks to maintain and enhance the streetscape and the desired future character of the locality;
b. The proposed landscaping does not enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale; and
c. The proposed development does not provide sufficient amenity and usability of landscaped areas.
Building Bulk
The proposed development should not be approved as it is not satisfactory having regard to General Principle 66 which relates to building bulk. (Section 79C(1)(a)(i) of the EP&A Act and clause 12(1)(a) of WLEP 2000).
Particulars
a. The building does not have an architectural scale that is consistent with adjoining and nearby buildings.
Overdevelopment of the Site
The proposed development should not be approved as it represents an overdevelopment of the site.
Particulars
a. The proposed development does not comply with the building height, landscaped open space and rear setback requirements;
b. The proposed development provides poor amenity for rooms on western side of the building at the ground and first floors, with regard to natural light; and
c. The streetscape presentation of the development does not reflect the detached style required by the desired future character statement.
Public Submissions
The proposed development should not be approved having regard to the weight and substance of submissions received by Council in response to the notification of the application.
34 The following emerged as the salient issues:
· desired future character;
· Other matters including:
building bulk;
landscaped open space;
landscaped area;
rear building setback;
building height;
overdevelopment of the site; and
public submissions.
The evidence and findings
Desired future character
35 The council had sought to assess the development application against the desired future character of the G3 locality - 'Manly Lagoon Suburbs' and Mr McKee sought to assess the application having regard for the character to that part of King Street east of the crest that is around 200m west of the land.
36 Ms Laidlaw considered that there would not be a great deal of difference between these two positions and the only issue would be "…how far one looks to establish the character of the locality that the new development must respect."
37 Ms Laidlaw had regard to the planning principles in GPC No 5 (Wombarra) Pty Limited v Wollongong City Council [2003] NSWLEC 268 and stated, [Note: Exhibit 4, pp 3-4]:
14 The issue of compatibility between a SEPP 5 development and the surrounding low-density zones arises in the majority of SEPP 5 applications. This is because the Policy allows development with different physical characteristics to what is permissible under the zoning. It is therefore useful to state some planning principles for assessing compatibility.
15 The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation.
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.
38 She also had regard to cl 31 of SEPPSL and concluded:
(a) The development 'recognise[s] the desirable elements of the location's current character' by breaking down the streetscape elevation into a series of projecting bays and recesses that reflect the rhythm of detached housing. Four projecting bays are provided, extending over the two floors presented to the street (8.7 metres wide for those containing the bedrooms and 10.9 metres wide for that containing the reception area/lounge) and these are separated by recessed sections 4.4 metres wide. These proportions are reasonably responsive to the pattern one would expect of detached housing, each house being separated by its, and its neighbours side setback, and for comparison, there are five dwelling houses on the site at present, compared to the four 'bays' presented by the proposed design.
(b) The recesses (containing informal sitting areas and the fire escape) are sufficiently setback from the projecting bay elements (ie by some 2.9 metres) to reinforce the rhythm referred to above, and provide real, as opposed to cosmetic/superficial, articulation of the front facade. It is relevant here that the main façade is only two storeys, hence an articulation zone of 2.9 metres is quite a significant degree of recess, when viewed in terms of its proportional relationship to the building as a whole.
(c) The pattern of projecting bays and recessed elements is reinforced by the fact that each projecting bay is provided with its own separate roof form, and these in turn are varied, in that the pitch falls in different directions (see drawing A2-04). The setback parts of the building that separate these projecting bays are reinforced as recessive elements, by use of a flat/parapet roof.
(d) The pattern of bay/recess is reinforced by using different colours (as indicated on the photomontage, although this would need to be confirmed by condition), within a complementary range, for each of the projecting bays, and by setting a significant landscape element (small tree) at each recess.
(e) Although Council's particulars raise concern as to the development not meeting the characteristic 'indigenous tree canopy', I understand that Council does not have a concern with the landscape proposals/setback to the front boundary, and hence the streetscape aspect of the proposal's landscape contribution.
(f) The height of the development is generally consistent with that which would be expected in this residential area. The uppermost ridgeline is at RL 32.15, which compares favourably with the ridgeline of the existing two-storey dwelling at No. 11 King Street (at RL 33.5). Also, for comparison, the Church to the east is also at RL 33.5.
(g) The development responds appropriately to the topography and setting, by cutting into the levels of the site on the high (west) side, this being the side adjacent to established residential) and allowing the building to rise to its full height only on the eastern side (this being the less sensitive boundary, shared with the Church). This means that, as presented to the streetscape, the development is only 1.5 storeys above the pavement level (of King Street) on the western side, where it is seen in context most closely with the single storey cottage at No. 15, yet it is a full two storeys in height as perceived in the streetscape, where it is seen in context most closely with the church, which has a ridgeline around 1.25 metres higher.
(h) The minimum front (or 'street') setback adopted, at 6.5 metres, is slightly less than that prevailing for the established houses on the site, but is 'reasonably compatible'. This dimension also meets that set out as a minimum by Council for new development (this setting a guide for the 'desired future character') and it is the same as for the church to the immediate east.
(i) The side setbacks, coupled with the 'cut/excavation' on the western side, produces an appropriate relationship with the residential development to the west - the development presents generally as a 'one to one and a half storey' elevation to this side. To the east, facing the Church, the proposed development is well setback from the boundary, by its proposed driveway. I support Council's view that it would be desirable to provide a landscaped strip adjacent to the driveway and comment on this further below.
(j) Bulk/setback issues to the southern boundary form a separate Council issue, and I comment on this issue below, however I note here that I believe this boundary also has been appropriately handled.
(k) The development is in the vicinity of a heritage item, this being the original Church hall building (No.1) which is well separated from the common boundary and well set back from the front boundary (behind more contemporary development). Council has not raised any issue as to the relationship with this heritage item (or the other at No. 27 King Street) and I would concur with that assessment. Conditions have been recommended by Council's heritage advisor to address potential construction impacts on the building.
Overall, therefore, [Ms Laidlaw] believe[d] the architect has produced a good response to the difficult task of merging a much larger built form into a low density residential character. The larger built form, in turn is one that is specifically anticipated by SEPP SL (and this development provides, as noted, a lower FSR than would be permitted by the SEPP), and I support the applicant's position that the functionality requirements of a high care facility such as this, dictate certain additional constraints that preclude the more fragmented built form that Council seems to support.
39 I have examined the possibility of changing the King Street roof form, perhaps to a hipped form, as was discussed with Mr Fuller, the owner of Nos 10 -14 King Street and the recently completed Willow Breeze Pty Limited development and I am satisfied that the present design is not easily altered. Also I am also satisfied that the proposal would reflect the rhythm of nearby detached housing by the architectural device of breaking down the streetscape elevation into a series of projecting bays and recesses. I am also satisfied that the proposal would not detract from the desired future character of the G3 locality.
40 Mr Patterson submitted that the respondent council is also now content that with the amendments to the design adopted by the applicant and taking into account the assessment undertaken by the Court-appointed town planning expert, Ms Laidlaw, that it is in a position to enter into consent orders. The amendments, to which he referred, flowed from Ms Laidlaw's preliminary assessment and resulted in more landscaping along the eastern boundary of the land, and breaking the ridgeline on the King Street elevation.
41 I consider the proposal would be reasonably compatible and sympathetic to the character of the locality both present and future and I make those consent orders as sought.
Other matters
Building bulk and height
42 I have concluded that the proposal and its bulk would be compatible in the locality when considered under cl 31 of SEPPSL. I am also satisfied that the proposal would meet the 'deemed to satisfy' standards for 'height', under cl 79(a) SEPPSL; and I have had regard for the fact that the provisions relating to 'height', 'storeys', and 'height in the rear 25% of the site' under cl 38(4) of SEPPSL do not apply, as residential flat buildings are not prohibited in the G3 locality.
43 Ms Laidlaw stated:
…in accordance with the 'Wombarra' planning principle it is reasonable to expect than an aged care facility will have a character somewhat different to detached residential housing and more particularly, once one moves towards a 'high care facility' that character will become more obviously different - or alternatively, the capacity to reflect a 'detached residential character' becomes more difficult. This is partly because the nature of care needed and provided is such that single level floor plans become more necessary and partly because there is a higher FSR available, which is presumably linked to the fact that such high care facilities need to operate at a certain threshold capacity in order to make them economically feasible (the proposed development does not in fact use the maximum FSR of 1:1 available but is at 0.81:1).
44 On the site inspection Mr Fuller confirmed that the floor space ratio, (FSR) of his development opposite was around 0.5:1 and less than that proposed. Thus it must be expected that there would be some difference in the bulk of the two proposals.
45 Taking these factors into consideration I am satisfied that the building bulk as proposed would not be unreasonable and I would not refuse the development application for this reason.
Landscaped open space and landscaped area
46 Although the proposal would not comply with the 'deemed to satisfy' standard for landscaped area under cl 79(a) of SEPPSL it would provide 22.1m2 of landscaped open space per bedspace, if the area of the central courtyard were included. To make up for a deficiency in the requirement of landscaped open space, the applicant has provided sunny sitting areas within the development. Given the lack of mobility of many of the people likely to be housed within the proposal, this lack of landscaped open space is reasonably offset by high quality indoor space. Thus, I am not concerned that the proposal would not provide the required 25m2 landscaped area per bed for a 'residential care facility'. I would not refuse the application for this reason.
Rear building setback
47 Ms Laidlaw pointed out that this concern of the council is limited to one section of the proposed building, which is a single storey part, at the southwest corner where the setback would be 3.1 metres.
48 The council was initially concerned that a reduced rear building setback would compromise the sense of openness of rear yards, reduce the capacity for screen landscaping, would not maintain continuity of buildings and open rear gardens and restricts deep soil planting and the capacity to grow larger trees.
49 Ms Laidlaw stated, [Note: Exhibit 4, p 14]:
…a 3 metre setback is still sufficient to provide planting in scale with a low, single storey building, and because there is good opportunity for 'deep soil planting' over the remainder of the rear boundary, this area also provid[es] an appropriate recreational space for future residents. This contiguous area (at 13.8 metre setback) provides a greater capacity for larger trees, and capacity to meet the environmental objectives incorporated in General Principle 63 of the LEP, than would a development complying with the 6 metre setback required by the LEP.
50 I accept the evidence of Ms Laidlaw in this regard and I am satisfied that this aspect of the development would not be unacceptable on merit, or in terms of the specific 'General Principles for landscaped Oopen space. I would not refuse the application for this reason.
Overdevelopment of the site
51 For the reasons given above, I am satisfied that the proposal, when considered against the controls of SEPPSL, would not be an overdevelopment of the land. The council did not press this issue in the appeal and was prepared to enter into consent orders.
Public submissions
52 There were two public submissions. One of these was received from Mrs Little, resident of No 12 Sunshine Street, Manly Vale, who was concerned that a very large 'Macadamia' tree growing on the subject land presents as a hazard because of its dropping "very hard nuts" onto her property. The applicant intends to remove this tree that is near the common boundary of the subject land and No 12 Sunshine Street. Once removed the hazard would be reduced.
53 The other objection was from Mr Fuller, the owner of Nos 10 -14 King Street, Manly Vale, the recently completed Willow Breeze Pty Limited development opposite the subject land. Mr Fuller was concerned to see that the proposal should comply with the relevant planning instruments. In particular he objected as "…the proposal has an aggressive continuous building along the street front and [a] roof pattern not reflecting the detached style and scale". He considered:
· the visual appearance of the proposal should be of "…detached style housing maintaining visual pattern and scale of the street".
· the landscaped area would be deficient when compared with the requirements of the WLEP and SEPPSL.
54 On the site inspection, I undertook to consider a possible change to the roof form in order to better relate the proposal to the streetscape. However, when one closely examines the plan of the roof, this is most difficult without radical replanning. I am satisfied that the applicant and the council have negotiated a form of development that would not be incompatible with the present and future character of the locality. I would not refuse the application for reason of this concern of Mr Fuller. I would also not refuse the application for reason of deficiency in landscaping.
55 For the above reasons, the appeal is upheld by consent.
Conditions
56 The conditions are those in Exhibit 7 as amended during the hearing.
Consent orders
57 The consent orders are:
The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.