Visual appearance
41 Clause 33(c) of the Seniors SEPP, inter alia, requires the maintenance of reasonable neighbourhood amenity and appropriate residential character taking into account matters such as building siting, form and bulk. Similarly the DCP requires that new buildings should contribute to the quality and identity of the area including streetscape, by having an appropriate residential character.
42 The issue of the visual appearance of the proposed development was of particular concern to the residents at 2 and 6 Reading Road because they believe that with the extension of the nursing home onto 4 Reading Road their rear outlook and rear yards would be dominated by the built form of the extended building. Miss Heretis agreed, explaining that the length and elevated ground floor level results in the Reading Road building being inconsistent with the length of established buildings in the vicinity of the site and having a visually overbearing built form. Mr Hills disagreed and did not accept that the amenity of 6 Reading Rd would be affected. Instead this property would benefit from additional built form modulation, changes in materials and landscaping.
43 Plainly the total built form of the proposal would be of greatest concern to 6 Reading Road whose backyard is and will continue to be dominated by the existing/modified two-storey Henson Street building to the west. In addition it will be affected by the single storey interconnected Reading Road building to the south. In this context it is to be noted that the Reading Road building is, as required by cl 40 of the Seniors SEPP, only single storey at the rear. Despite this Miss Heretis continues to be concerned at the elevated floor level that results in the whole structure here being higher than it would otherwise be. Whilst the single storey aspect assists, its elevated nature and the proposed continuous built form to the south and the west of the backyard together with the limited landscaping opportunities and taking into account the non-complying set back, I agree that the consequences for 6 Reading Road are unacceptable.
44 The first floor level of the altered/extended Henson Street building will extend by about 9 m into the 25% single storey area contrary to cl 40 (4) of the Seniors SEPP although of this 9 m, only about 3.6 m is actually an extension. In this context it it is relevant to note that the east side of the (existing) building in this location also fails to comply with the 3 m site setback requirement in the DCP. Miss Heretis agreed with the objectors that this extension would affect the visual amenity of their neighbouring properties at 8 and 8A Reading Road and the villa home to the north. Mr Hills disagreed explaining that the 3.6 m extension is considered minimal and allows a modulation/articulation of the building and that appropriate landscaping can assist. In this regard I find the reasoning of Miss Heretis to be persuasive and although this aspect may not have been by itself determinative, a more responsive approach to the applicable development standard and the DCP requirements is warranted.
Landscaping
45 The 25 square metres of landscaped area per residential bed threshold in cl 48 of the Seniors SEPP equates to the provision of 1,375 sq m of landscaping. By comparison, 504 sq m is to be provided. Application of the requirements of the DCP indicates a deficiency of 42 sq m overall and a 166 sq m soft landscaped area deficiency. The objectives of the landscaped area requirements are to ensure that the development is appropriately landscaped so as to soften its appearance and complement the streetscape and to provide adequate and usable private and communal open space with adequate solar access.
46 In this regard Miss Heretis was concerned that the minimal provision of ground level usable and functional landscaped areas that result from the provision of landscaping around the periphery of the building is where development cannot otherwise occur. Failure to comply with setback requirements contributes to its unsatisfactory nature. The landscaped areas at the rear of the Henson Street building that could be developed for the necessary communal open space would be difficult to access via the fire stair/egress on the west side. Also, as a result of the general deficiency in landscaping the adverse amenity impacts of the development on neighbours cannot be mitigated. In response Mr Hills said that the landscaped area is very much a response to the existing 1945 building. It is nevertheless sufficient to meet the needs of the nursing home and provide and an occasional area for walking and will provide visual relief for neighbours. The first floor terrace will also provide external open space.
47 I again find the reasoning of Miss Heretis persuasive and agree that the open space provision is dimensionally deficient, mainly comprising residual spaces around the building. Had more substantial areas of effective and usable landscaping been provided within the site some of the above-mentioned non-complying setbacks might have been acceptable. I also do not accept that the effectively enclosed roof terrace is, in this case, a sufficient alternative to the provision of accessible ground level landscaped open space as could have been provided at the northern end of the Henson Street site.
48 Finally, whilst the cl 48 landscaped area threshold in the Seniors SEPP is not a standard to be applied it nevertheless provides an indication of what the Policy deems to be acceptable and in my view suggests that very strong arguments must be provided if the far less onerous requirements of the DCP are not to be met. In my opinion such arguments have not been provided. These matters further contribute to the unacceptability of the proposal.
Internal amenity
49 Clause 34 of the Seniors SEPP requires consideration of the visual and acoustic privacy of the residents of the proposed development in terms of site planning, windows and their location and balconies together with the use of screening devices and landscaping. In this context Miss Heretis points out that both buildings do not meet the Seniors SEPP site frontage requirements and the consequences of this include the difficulty in providing the required side setbacks and the failure of the proposal to provide appropriate and sufficient landscaping and open space at ground level for residents.
50 Miss Heretis also had a number of concerns in relation to the amenity that the development provides for residents. The first floor Henson Street balcony and the adjoining communal living/dining room are south facing and would have poor amenity as a result of their unsatisfactory solar access. Similarly the ground floor lounge/dining room being south facing would also have poor solar amenity. The five wards comprising 10 beds (out of 55) only have a south-facing window. In response Mr Hills explained that the first floor lounge/dining room exists and that the proposed balcony can only be on the south side given the building's existing orientation. The necessary orientation of the Reading Road building is also constraining in terms of solar access. Whilst not proposed, first floor rooms with southern orientation could be provided with skylights. Miss Heretis was also critical of the placement of the staff lounge and office in the basement in rooms that have no natural light.
51 Whilst I accept that in this regard some tolerance can be given, because this development involves substantial modifications and additions to an existing building I do not accept that these concerns could not have been more sensitively dealt with. More generally in relation to landscaped areas whilst I understand that the residents are not expected to have great demand is for landscaped open space this is not a sufficient reason to avoid the provision of quality, landscaped, accessible open space for people who are destined to spend the vast majority of their lives on the site. Despite its accessibility the roof top terrace does not overcome this concern. Together these matters add to the unacceptability of the proposal.
Character, streetscape and site width
52 Miss Heretis and Mr Hills were in agreement that the architectural presentation of the proposal to both Henson Street and Reading Road was consistent with surrounding residential built forms. Despite this Miss Heretis explained that the absence of a complying site frontage as required by the Seniors SEPP for both buildings contributes to the impacts of the bulk and scale of the proposed development on the streetscape. In this context she was particularly concerned that the 905 mm first floor northern side setback of the Reading Road building was inappropriate and incompatible with established first floor residential setbacks in the vicinity; those being generally 1.5 m. Mr Hills disagreed suggesting that the setback reflects the existing setback on 6 Reading Road. Also, the SEPP 1 objection in dealing with the 20 m Reading Road site frontage development standard argues that the (9 m) deficiency can be considered to be acceptable because this is a secondary frontage to the site and thus compliance is not required. As for the Henson Street frontage the objection argues that taking into account the splayed frontage (about 35°) the site frontage at the building line would be about 23.6 m and therefore in compliance with the development standard.
53 In relation to the Reading Road frontage, I do not accept that this should be treated as a secondary frontage to the extent that the development standard can simply be set aside. Plainly the amalgamated site has two separate frontages (in two different streets) and I see no reason why the development standard should not be applied to both especially as there is no suggestion in the policy that there be any such leniency. As regards the Henson Street frontage I acknowledge that an ambiguity emerges when one applies this site frontage development standard to a site that has a splayed frontage that is different to the actual width of the site. In this case at the building line (the DCP requires a setback of 7.5 m) the site's frontage at the building line (measured parallel to the street frontage) would be about 23.6 m whereas the site's actual width (perpendicular to the site boundaries) is 16.4 m. In my view the development standard should be considered in a practical way and the term "wide" interpreted to mean the perpendicular width of the site. Consequently both frontages fail to comply with the 20 m development standard.
54 As regards the Reading Road frontage I have been persuaded by the reasoning of Miss Heretis that, in response to existing nearby building characteristics and taking into account the requirements of the DCP, a greater setback would be appropriate. In the circumstances I would not uphold the SEPP 1 objection. As for the Henson Street frontage I would otherwise have upheld the SEPP 1 objection taking into account that the nursing home already exists on this part of the site; notwithstanding that the building is to be substantially modified.
55 Miss Heretis was also concerned that the elevated single storey link that connects the two-storey elements of the extended building would be inappropriate, being visible from Henson Street. Also, the lack of a green belt to the rear of the property would be inconsistent with the established rear yards of neighbouring properties and thus uncharactistic. Mr Hills responded by explaining that existing and proposed landscaping can soften the view of this link. In this context I accept that the existing open backyard character of the sequence of houses between 2 and 10 Reading Road will be affected not only in terms of the amenity of the close-by residents in Reading Road but also in terms of character generally. The built form thus created will be uncharacteristic although if it could have been lowered in the manner of a conventional single storey structure, with appropriate setbacks, landscaping might have been sufficient to mitigate this concern.
56 More generally the proposed building as a whole will be dominant and uncharacteristically large by comparison with the surrounding low-density residential development and as a consequence, greater attention to matters such as setbacks and landscape setting are required.
Car parking
57 Mr Milner and Mr McLaren are now satisfied with the internal car parking and access design aspects of the proposal. However Mr Milner was of the opinion that because the proposed development is, in terms of the Seniors SEPP a "virtual reconstruction" the total parking requirements should be provided on-site including a complying ambulance bay. On this basis there would be a deficiency of six car parking spaces.
58 Conversely Mr McLaren was of the opinion that the development involves "alterations and additions" and therefore on-site parking need only be provided for the net increase in parking requirements. Also relevant is the fact that dementia patients generate a lesser visitor demand than would otherwise be the case.
59 In my opinion, for the purposes of assessing car-parking requirements, the works associated solely with the Henson Street building comprise significant alterations and additions. The proposed Reading Road comprises a new building that is to be attached to an existing building. In the circumstances I accept Mr McLaren's approach as being appropriate. Whilst the failure to provide the required number of car parking spaces is not fatal to this application it is nevertheless preferable that the DCP requirements be complied with. The difficulties in meeting these requirements are and indication of the constraining nature of the site. Also, given the extent of works involved I would have thought that modifications to achieve an appropriately dimensioned ambulance bay (that doubles as a loading dock) would be appropriate.
Conclusion
60 The proposal now before the Court will undoubtedly improve the nursing home and would, in my view, meet the aims of the Seniors SEPP in relation to the provision of housing that would increase the supply of residences to meet needs of seniors or people with a disability and would make efficient use of existing infrastructure and services. I also understand that there is a need to upgrade the facility in accordance with recent legislative changes and that the acquisition of additional land to assist this process has been difficult.
61 Whilst some tolerance must be given in relation to the fact that the nursing home has existed in the Henson Street building for some 25 years, the significant increase in the size of the home necessitates, at least, a movement towards compliance with the various requirements of the planning controls. In particular, it should be expected that any extension of the building as is proposed in the form of the Reading Road building will, unless good reasons are shown, comply with these controls but, as discussed above, this has not occurred.
62 The objectives of the 2(a) and 2(b) residential zones whilst anticipating a mix of housing forms importantly seek, inter alia, to protect the character and amenity of the area. Taking into account the various provisions in the planning controls including site requirements, density and landscaping, and considering that residential flat buildings are not permitted, I accept that, as suggested by Miss Heretis, the proposed development does not exhibit sufficient low intensity characteristics for it to appropriately respond to these objectives.
63 In all of the circumstances I conclude that the proposal would not as required by the Seniors SEPP "be of good design" and agree with the submission made on behalf of council that the proposal would be an overdevelopment of the site. The appeal is therefore dismissed and the development application refused.
Orders
64 For the above reasons the orders of the Court are:
1. The appeal is dismissed.
2. Development application No 2008/242 for alterations and additions to the existing Jenny Lyn Nursing Home at 13 Henson Street Brighton le Sands is determined by refusal.
3. Exhibit C is retained