(b) density and scale, that is an FSR of 1:1 or less when it is expressed as an FSR.
(c) If the development provides a minimum of twenty-five square metres of landscaped area per bed.
(d) If parking is provided at a rate of 1 per 10 beds, 1 per staff and 1 ambulance space.
42 These requirements in clause 48 cannot be used to refuse the development as opposed to being requirements that the development must comply with.
43 The Court must have also regard to the council's planning regime in terms of the Rockdale Local Environmental Plan. The LEP provides in the 2A(1) zone in which the subject site is located a maximum floor space ratio of 0.5:1, bearing in mind the provisions of the SEPP that where there is any inconsistency the provisions of the SEPP prevail.
44 The objectives of the 2A(1) zone include:
to identify land appropriate for medium and high density subject to flooding et cetera and to promote the scale and form of character of residential development compatible with the established character.
45 I note that development that is permissible in the subject zone includes hospitals as well as housing for older people or people with a disability and attached dual occupancy development and detached dual occupancy developments.
46 The council also has a development control plan known as DCP 40 effective from October 1998 and since that time the Seniors State Policy of 2004 was made. There was discussion about the weight that the Court should give this DCP. Despite the fact that it was made prior to the 2004 SEPP I have considered the matters contained within this DCP, although I note that it has not been readopted by the council and the planning provisions as at the time of its adoption are unknown in terms of the zoning and different elements contained within council's planning regime.
47 The DCP provides guidance and it has provisions relating to height, with the objectives:
to ensure that new development is in character with and sympathetic to the scale of adjacent residential buildings and the surrounding streetscape;
to ensure that development has minimal impact on neighbouring properties in terms of building dominance, overshadowing, privacy and views;
to minimise the impact of multi-unit housing in areas where there is substantial detached housing.
48 The DCP also contains provisions for building setbacks and developments up to two storeys in height and developments of three storeys in height. It also contains provisions for setbacks and side setbacks. It is noted that the side setback in the DCP is a minimum of three metres from the side boundaries and the subject proposal is three metres from the northern and southern boundaries.
49 I accept the council's submission however that there is an incursion in this three metre setback area because of the louvre screens proposed for privacy, in particular to the southern boundary. In this regard the setbacks of the proposal is stepped on the northern boundary of the subject site such that the three metre setback at the ground floor is increased to some four and a half metres at the upper level, or the second floor, and five metres to the glass balustrading of the rooftop terrace and some seven and a half to eight metres for what is known as the storage and the lift elements on the third storey. The other State Policy that was also cited is SEPP 6, the number of storeys in a building in terms of definitions.
50 The Court must have regard to the fact that the proposed development does not comply in terms of the development standards and the development standards require a SEPP 1 objection. The Court has had regard to the principles and the authorities of Winten Property Group v North Sydney Council [2001] NSWLEC 46, a judgment of his Honour Lloyd J on the approach to SEPP 1 assessments and also to the Chief Judge of this Court in Wehbe v Pittwater [2007] NSWLEC 827. There is no argument between the parties that the standards under clause 48 require SEPP 1 objections to vary the height of 8 metres, the 2 storeys, and the rear single storey setback requirement.
51 Mr Burrell provided SEPP 1 objections to vary the standards. His SEPP 1 objections are in respect of the original plans to the Court the subject of the appeal. However, no issue is taken in respect of the applicant now relying on amended plans. The issue as to whether the SEPP 1 objections are well founded and justified in the circumstances of the case are still in contention.