Nanevski Pty Limited v Rockdale City Council

Land and Environment Court (NSW)|2010-04-29|Before: Mr J

CITATION : Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1220

APPLICANT Nanevski Pty Limited PARTIES : RESPONDENT Rockdale City Council

DEVELOPMENT APPLICATION :- residential care facility KEY ISSUES: SEPP 1 objection to height and number of storeys character of the streetscape internal and external amenity impacts

CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41

APPLICANT Mr A Pickles, barrister instructed by Mr D Briggs LEGAL REPRESENTATIVES: of DG Briggs and Associates

RESPONDENT Mr J Cole, solicitor of HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10721 of 2009 Nanevski Pty Limited v Rockdale City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (the council) of Development Application (2010/8) for the demolition of two existing dwellings and the construction of a residential care facility at 39-41 Evans Street, Sans Souci (the site).

2 The key contentions raised by council can be summarised as whether:

i. the height and number of storeys is acceptable and the objections under State Environmental Planning Policy No 1 (SEPP 1) are well founded,

ii. the proposal is uncharacteristic in the streetscape because of its height, inadequate setbacks, absence of landscaping, bulk and scale,

iii. the proposal creates unacceptable amenity impacts on adjoining properties by way of loss of visual and aural privacy, loss of solar access and excessive bulk when viewed from adjoining properties.

iv. the proposal achieves acceptable internal amenity for residents and staff . The site 3 The site is lot B DP 365671 (No 39) and lot C DP 365671 (No 41). It is rectangular in shape with a front and rear frontage of 30.48m and side boundary lengths of about 59.5m with a total site area of 1,815sqm. The site is relatively flat with a slight fall of about 0.3m from front to rear. There are six trees on the site.

4 Each lot is occupied by a single storey dwelling with ancillary structures. The dwellings are constructed of brick and fibrous cement with a tile roof.

5 Adjoining the site to the east (43-45 Evans Street) is a single storey villa development. Four of these villa houses and their open space courtyards face the site.

6 To the west the site adjoins a recent two storey house (37 Evans Street) and to the rear are single storey houses (44, 46 and 48 Griffiths Street). 48 Griffiths Street is used as a child care centre and 46 Griffiths Street has a swimming pool which is located close to its common boundary with the site.

7 The surrounding area is predominantly characterised by single storey dwellings and more recent two storey dwellings set back from the street with garden frontages and large rear yards.

8 The immediate area is within a low lying containment basin which is subject to inundation. The proposal 9 The proposal provides for the demolition of the existing dwellings and associated structures and the construction of a residential care facility for aged persons with a capacity of 58 beds in 29 rooms with ensuite bathrooms over two levels. The ground level is constructed about 1m above ground level due to the flooding constraints of the site. Each level is also provided with amenities such as communal bath, lounge, dining area, staff and administration facilities and terrace areas. A basement area provides parking for 17 cars including two with disability access, unloading facilities, kitchen, laundry and staff room and staff meeting room. The basement is accessed via an entry ramp on the eastern side of the building and an exit ramp on the western side. There is also a drive through porte cochere at the front entrance with a dedicated ambulance bay. The proposal provides for a rooftop outdoor terrace area with plant and services. A lift and stairs connect all levels of the building. Relevant planning requirements 10 The site is within the 2(a1) - Low Density (Restricted) Residential Zone under Rockdale Local Environmental Plan 2000 (LEP 2000). Housing for older people or people with a disability is permissible with development consent in this zone. Clause 12(3) provides that consent must not be granted unless the development would be consistent with one or more of the objectives of the zone. The objectives are found in cl 28.

11 Rockdale City Council Development Control Plan No. 40 - Housing for Older People and People with a Disability (DCP 40) is relevant and provides specific requirements for Density (cl 5.3), A Sense of Home (cl 6.2), Site Planning (cl 10), Streetscape (cl 11), Building Appearance, Design and Materials (cl 12), Building Height (cl 13), Overshadowing (cl 14), Building Setbacks (cl 15), Landscaping, Recreation Areas and Open Space (cl 16) and Visual and Acoustic Privacy (cl 17).

12 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP 2004) applies. Clause 2 sets out the aims of the policy and how these aims are to be achieved. It relevantly provides: This Policy aims to encourage the provision of housing (including residential care facilities) that will: (a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and (b) make efficient use of existing infrastructure and services, and (c) be of good design. (2) These aims will be achieved by: (a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and (b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and …… 13 Clause 5(3) provides that if SEPP 2004 is inconsistent with any other environmental planning instrument, made before or after it, then SEPP 2004 prevails to the extent of the inconsistency.

14 Clause 10 of SEPP 2004 includes a "Residential Care Facility" as being a form of "Seniors Housing". Clause 11 includes requirements to be provided in a "Residential Care Facility".

15 Part 3 of SEPP 2004 provides Design Requirements, which include the Design Principles in Division 2. These are relevantly, Neighbourhood amenity and streetscape (cl 33), Visual and acoustic privacy (cl 34) and Solar access and design for climate (cl 35). Clause 32 provides: A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. 16 Clause 40 provides that consent must not be granted to a development application unless the development complies with a site area of at least 1000 sq m (cl 40(2)), a frontage of 20 m measured at the building line (cl 40(3)), a height of 8 m or less (cl 40(4)(a)), 2 storeys in height (cl 40(4)(b)) and single storey in the rear 25% area of the site (cl 40(4)(c)).

17 The proposed development does not satisfy the requirements in cll 40(4)(a), (b) and (c). Objections under SEPP 1 have been submitted to demonstrate why strict compliance is unreasonable and unnecessary.

18 Part 7 provides development standards that cannot be used as grounds to refuse development consent. Clause 48 provides specific standards for residential care facilities and relevantly includes a building height of 8 m or less (cl 48(a)), a floor space ratio (FSR) of 1:1 or less (cl 48(b)), a landscaped area of 25 sq m for each residential bed (cl 48(c)) and car parking rates for residents and visitors and ambulance parking (cl 48(d)). The parties disagree on whether the proposal met the FSR standard. They agree the proposal does not meet the standard for building height and landscaped area.

19 Clause 46 establishes the interrelationship between these Development Standards and the Design Principles. It provides: 1) Nothing in this Part [7] permits the granting of consent to a development application made pursuant to this Chapter if the consent authority is satisfied that the proposed development does not demonstrate that adequate regard has been given to the principles set out in Division 2 of Part 3. Note: It is considered possible to achieve good design and achieve density ratios set out in Division 2. Good design is critical to meriting these density ratios. The evidence 20 The Court visited the site and heard evidence from a number of residents who were principally concerned about the height, bulk and scale of the proposal, which they considered to be uncharacteristic of the area with inadequate landscaping. They were also concerned about the number of car parking spaces and the impact of traffic on the street, including noise from ambulances. Other residents raised concerns about stormwater and flooding impacts, noise and overlooking. The residents of the adjoining villa houses at 43 Evans Street were particularly concerned about the impact of the proposal on their courtyards, particularly overshadowing, privacy and excessive bulk. The adjoining residents at 37 Evans Street were concerned about the outlook from their house and the noise and privacy impacts from the proposal.

21 The Court heard expert evidence from: For the council o Mr G Vickas, planning, aged care and access issues o Mr G Atkins, noise issues

For the applicant o Mr K Burrell, town planning issues o Mr S Manning, aged care issues o Mr Koikas, noise issues o Mr R Jackson, arborial issues 22 Mr R Kozarovski, for council and Mr G Scheffers, for the applicant provided a joint report on matters relating to the Building Code of Australia (BCA). Mr J Milner, for council, and Mr P Kozarovski and Mr D Bewsher, for the applicant, provided a joint report on stormwater issues. The applicant provided further expert evidence from Mr M Relf on access issues. These experts were not required for cross examination.

Height and number of storeys 23 Mr Burrell acknowledged that the lift foyer and staircase exceed the 8m height control (cl 40(4)(a)) and the two storey control (cl 40(4)(b)). He also acknowledged that the single storey rear setback control is exceeded for a distance of approximately 8cm (cl 40(4)(b)).

24 Mr Burrell provided a SEPP 1 objection to demonstrate that strict compliance with the development standards was unreasonable and unnecessary in the circumstances of this case.

25 As SEPP 2004 contains no objectives for the height or the single storey rear setback control Mr Burrell adopts the objectives from Seniors Living Policy; Urban Design Guidelines for Infill Development (the Guidelines) published in March 2004 by the then Department of Infrastructure, Planning and Natural Resources, even though the requirement to consider the Guidelines in cl 31 refers only to infill self-care housing, Mr Burrell considered the objectives to be also relevant to residential care facilities. The objectives are: * to minimise impacts on the privacy and amenity of existing neighbouring dwellings, * to minimise overshadowing of existing dwellings and private open space by new dwellings, * to retain neighbours views and outlook to existing mature planting and tree canopy, * to reduce the apparent bulk of development and its impact on neighbouring properties, * to provide adequate building separation. 26 Mr Burrell addressed each of the objectives and concluded that strict compliance with the height and single storey rear setback control is unnecessary to achieve the objectives of these controls and it would therefore be unreasonable to require compliance.

27 Mr Burrell referred to the Note to cl 40(4)(b) as the relevant objective of the two storey standard. This states: Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.

28 In Mr Burrell's opinion, the proposal when viewed from the streetscape is consistent with the two storey scale of other development and provides an appropriate transition with the adjoining single storey villa houses.

29 Mr Vickas states that the non-compliance with the height and number of storeys highlights the bulk and scale of the proposed development, which he considers to be excessive within the context. Mr Vickas states that: The external terrace area on the top of the building together with its perimeter planter structures and covered patio remain integral parts of the second floor of the building, and in any event these elements make a significant contribution to the three storey scale of the building. 30 Mr Vickas held similar opinions in relation to the terrace area at the rear of the building which due to its height, planter boxes, privacy screens and roof structure appeared as a two storey element, which in his opinion, contravenes the single storey rear setback control. Findings 31 In this case, the appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 32 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land . 33 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

Height - clause 40(4)(a) 34 Clause 40(4)(a) of SEPP 2004 states: a) the height of all buildings in the proposed development must be 8 metres or less, and Note: Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a). 35 Clause 3 of SEPP 2004 includes the following definitions of "height" and "ground level": "height" in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

"ground level" means the level of the site before development is carried out pursuant to this Policy. 36 The only part of the building, which does not comply with the height control is the lift lobby and the stairs. These are located towards the southern end of the building and will have no material impact from the street. The visibility of the structures from the adjoining development to the east and west is unclear, however, it is likely that the angle of view would limit their impact to an acceptable level. Although the structures are set back approximately 15 m from the rear boundary they will be visible from the private open space of adjoining properties to the south and will add to the overall bulk of the building to the extent that it does not meet the objective of the control to reduce the apparent bulk of development and its impact on neighbouring properties.

Number of storeys 37 SEPP 2004 does not define storeys. Although, cl 3(2) provides that in calculating the number of storeys in a development for the purposes of the Policy, a car park that does not extend above ground level by more than 1 m is not to be counted as a storey. Due to the constraints resulting from the potential inundation of the site the ground floor level above the basement is about one metre above ground level. The experts did not include the car parking level for the purpose of calculating the number of storeys.

38 State Environmental Planning Policy No 6 - Number of Storeys in a Building (SEPP 6) provides: (1) Where the application of a provision of an environmental planning instrument requires a determination of the number of storeys, floors or levels which a building contains, that number shall, for the purposes of applying the provision, be deemed to be the maximum number of storeys, floors or levels, as the case may be, of the building which may be intersected by the same vertical line, not being a line which passes through any wall of the building. (2) Except as provided by subclause (3), when applying subclause (1) in relation to a provision referred to in that subclause, a reference in subclause (1) to storeys, floors or levels shall be treated as a reference to storeys, floors or levels, within the meaning of the provision. (3) The second reference in subclause (1) to storeys, floors or levels does not include a reference to the whole or any part of a roof used as an uncovered garden, terrace or deck. 39 While the application of cl 3(2) and cl 5(3) excludes the car park from the number of storeys, it does not exclude areas such as the staff room, staff meeting room, laundry and kitchen. The inclusion of these areas results in the building in the rear 25% area of the site exceeding one storey to a greater extent than that estimated by Mr Burrell. Further, the roofed area of the rear terrace and the roof of the building would, under SEPP 6, be included as a storey.

40 I note in LEP 2000 and DCP 40 "storey" is defined as: storey means the space within a building between one floor level and the floor level next above or, if there is no floor level above, the ceiling or roof above, but does not include: (a) space used for car parking, laundries or storerooms, if the ceiling above the space is not more than 1 metre above natural ground level, or (b) attic space which is part of the dwelling immediately below and is incapable of being used as a separate dwelling, or (c) plant rooms. 41 However, it would appear that the definition of storey in SEPP 6 is relevant for determining the number of storeys in SEPP 2004. Even if the definition in LEP 2000 and DCP 40 were applied, parts of the rear of the building would be two rather than one storey.

42 The key question is whether the non compliance with the number of storeys meets the objectives of the controls in cl 40(4)(b) and (c).

Number of storeys - clause 40(4)(c) 43 Technically, the building in the rear 25% of the area of the site is two storeys although; one storey is largely below ground level and therefore does not add to the bulk of the building to the extent that a storey above ground level would do. The roof over part of the terrace will further add to the number of storeys, although this is further setback from the boundaries.

44 The rear of the proposal is about 4m high above ground level and set back about 2m from the side boundaries. It adjoins the rear garden of 37 Evans Street and the courtyard of 4/43 Evans Street. This courtyard is approximately 3m wide and is the principal area of private open space for this villa which adjoins its kitchen/living area. I accept Mr Vickas evidence that the bulk of the proposal is beyond what is anticipated under the planning controls. The proposal is technically two storeys and will appear as two storeys. It therefore does not meet the objective of the planning control in cl 40(4)(c) to reduce the apparent bulk of development and its impact on neighbouring properties.

45 Although technically not included as a storey, the privacy screen together with the planting further add to the bulk of the building at this point.

Number of storeys - clause 40(4)(b) 46 In Mr Burrell's opinion the purpose of cl 40(4)(b) is limited to avoiding an abrupt change in the scale of development in the streetscape. If I accept that the objective of the control is limited to this extent then the proposal when viewed from the street is technically two storeys. The areas of non compliance, where the building is three storeys, are generally not visible from the street and therefore the proposal would meet this control.

47 However, it is questionable that the purpose of the control would be so limited given that Mr Burrell recognises that the purpose of the development standard in cl 40(4)(a) and (c) is broader. I find that the control would not be limited to those parts of the development that are visible only from the streetscape but would also refer to development within the streetscape, which would include the relationship of the proposal to adjoining development and its impact. The objectives identified by Mr Burrell for cl 40(4)(a) and (c) would also be relevant to cl 40(b).

48 Part of the main section of the building is three storeys as a result of the lift lobby and stair, which provide access to the roof terrace. As stated above these add to the bulk of the building and will impact on the adjoining properties to the rear and will appear as three storey. The roof structure over the terrace further adds to this non compliance, however, this is set back from the edge of the building and is unlikely to be visible or to impact on the overall bulk of the building.

49 For the reasons discussed above, I have found that the proposal does not meet the objectives of the height control (cl 40(4)(a)), the two storey control (cl 40(4)(b)) and the single storey rear setback control (cl 40(4)(c)).

50 I am not satisfied that the breach of these development standards is consistent with the aims of SEPP 1 or that that compliance would tend to hinder the attainment of the specified objects of the EPA Act.

51 It follows that compliance with these development standards is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded. The consequence is that the appeal must be dismissed and development consent refused.

Character/streetscape 52 Mr Vickas and Mr Burrell agreed that the existing character of the street is varied, with no consistency of character or architectural style. The existing development is predominantly one and two storey houses. Mr Vickas placed emphasis on the pitched roofs, gardens and setbacks of the dwellings as desirable elements of the street. While he recognised that the gardens were sometimes nothing more than grass and a few shrubs, in his opinion, this provides a degree of softening.

53 The experts held different opinions about the likely future character of the area. In Mr Burrell's opinion larger two storey dwellings are replacing the older style single storey dwellings and the area is undergoing transition. Whereas Mr Vickas acknowledged that over time there would be new houses but considered that houses would also be retrained and renovated and that the character would remain mixed. Further he noted that the adjoining single storey villas and the new two storey dwellings were unlikely to be redeveloped and that immediate context of the site would therefore remain.

54 Mr Vickas states that the proposed development "makes a sudden and abrupt change of scale and character between itself and adjoining development, and especially in relation to the single storey villa housing to the east". He considered the building to be "monolithic" due to its width, height, setback and landscaping. He referred to the elevated basement and the planter boxes on the roof, which add to the height and bulk of the building. The two driveways, basement and ambulance bay reduce the landscaping in the front setback and there are limited side setbacks for landscaping. In Mr Vickas opinion the building could be designed to be compatible with the streetscape but in its current form it is not.

55 Mr Burrell states that the proposal responds appropriately to an area undergoing transition. In his opinion, the building is a two storey form with varied setbacks both in plan and elevation. The landscaping in the front setback is adequate and the ambulance bay and paired driveways do not overwhelm the frontage. The basement level is screened and cannot be lowered because of the flooding constraints on the site.

Findings 56 Clause 32 of SEPP 2004 provides that consent must not be granted to a development application unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles set out in Division 2. Relevantly, cl 33 addresses neighbourhood amenity and streetscape and states that 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 57 Streetscape is defined in cl 3 of SEPP 2004 as: streetscape means the character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of the built and landscape features when viewed from the street. 58 The Policy provides no numerical requirements for street, side or rear setbacks but relies on the general requirements in cl 33(c)(i) and (iv) and (d).

59 Clause 12 of DCP 40 provides qualitative requirements for building appearance, design and materials, including specific qualitative requirements for streetscape and the built form (cl 12.2). For two-storey buildings, cl 15.1 provides for a 7.5 m front setback and a minimum 3 m side and rear setback and that "setbacks should vary to attempt to break up long lines of wall space and add interest to the building, therefore avoiding a monolithic appearance".

60 While referring to an earlier version of SEPP 2004, the decision of Lloyd J in Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41 deals with the provisions of cll 30 [now cl 32] and 31(a) [now cl 33(a)] and their relationship with cl 79 [now cl 48], which are the standards that cannot be used to refuse consent for residential care facilities. His Honour states at [6]: In the context of the present case, it can be seen that these provisions require the consent authority to go through a process which has a number of stages. The first stage, required by cl 31(a), is the recognition of the desirable elements of the location's current character (or, in the case of precincts undergoing transition, where described in the local planning controls, the desired future character), "so that" the consent authority can then proceed to the second stage. The second stage, also required by cl 31(a), is to make an assessment of whether the new buildings "contribute to" the quality and identity of the area - that is, whether they contribute to the quality and identity of the desirable elements of the location which have been identified in the first stage. The third stage is to determine whether the proposed development satisfies the remaining sub-cll (b) to (g) of cl 31. The fourth stage is required by cl 30 - the consent authority must determine whether it is satisfied that adequate regard has been given to these principles and if not, then the development application must be refused. Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards and other criteria in Pt 7 of the Policy (including cl 79). 61 In adopting the stages outlined by Lloyd J in Marina Bay it is first necessary to establish the desirable elements of the location's current character. While the area is varied, it is domestic in scale and the street has generally consistent setbacks with landscaping, in most cases, and single storey elements closest to the street. Pitched rooves predominate and there are no examples of roof terraces fronting the street.

62 I do not accept that it is an area undergoing transition. While new houses are replacing some old houses it will remain domestic in character with a mixture of one and two storey houses consistent with the low density zoning and the restrictions resulting from inundation. The developments immediately adjoining the site are likely to remain.

63 The second stage identified by Lloyd J in Marina Bay is to make an assessment of whether the new buildings contribute to the quality and identity of the desirable elements of the location identified in the first stage. Clearly the policy anticipates a form of development, which is larger than existing development and not domestic in scale and character. However, I am not satisfied that the proposal adequately contributes to the character in a number of ways.

64 Firstly, while existing landscaping in the front setback areas may only be grass with a limited number of shrubs and trees this achieves some softening of the built form. As the basement is built to within a metre of the front boundary, only limited landscaping in planter boxes is proposed along the street. I doubt whether the planters would support trees due to size and limitations of the fence and detention tank below. There is also limited landscaping along the side boundaries in a 650mm wide strip, which will not effectively screen the development. The lack of landscaping in scale with the development is incompatible with the existing character.

65 The experts agree that under the DCP 40 definition, approximately 28.5% of the site is landscaped area at ground level, of this about 12% of the site is soft landscaping. The amount of soft landscaping is clearly insufficient for this scale of development and does not respond to a desirable element of the area where small houses are located on large sites with large amounts of open space. The landscaping does not need to be the same as the existing but it should be in scale with development to screen and soften the bulk of building when viewed from other houses and the street and to provide an outlook for the development.

66 Opportunities to delete one of the entry ramps, to increase the side setbacks and to reduce the size and setback of the basement would provide more landscaping, but these changes are likely to require a significant redesign of the building.

67 Secondly, the main front facade of the development is setback about 7.2m from the street. This generally aligns with the setback of the single storey elements of the adjoining development but is not consistent as it brings the main two storey frontage of the building closer to the street than other two storey developments. The two storey frontage is accentuated by its width over two blocks, its height with the elevated basement and roof planter boxes (although setback) and the lack of landscaping. Other elements, such as the upper level balconies and the significant butterfly roof element project to within 4.5m of the boundary. These elements add significantly to the bulk of the building and are uncharacteristic of the area.

68 Clause 15.1(a) of DCP 40 permits a front setback of 7.5m but this is qualified by (c) which states that in low density areas buildings at the front of the property should resemble single dwellings in setback and (d) which permits encroachments of up to a maximum of 1200mm of elements such as balconies where they do not detract from the building or streetscape. The proposal does not meet the requirements of DCP 40 and also does not provide a setback that is "in sympathy" with nearby dwellings.

69 Thirdly, landscaping is particularly important along the side boundary to the villas as their kitchens and in some cases dining areas with adjoining living areas and courtyards are orientated to the eastern boundary of the development.

70 The side setbacks for more than 50% of the length of the ground level are 2m and the building is 4m in height. This setback is below the 3m minimum requirement in cl 15.1 of DCP 40 and is not adequate to provide landscaping to mitigate the bulk of the building. Part of the ground floor and the first floor are set back 3m or more which is a positive element of the proposal.

71 A significant part the ground level is the structure over the car park entrance and exit driveways. The side setback could easily be increased if a single driveway for both entry and exit were provided. The width of the basement of 26m could also be reduced which would enable more landscaping to be provided along the side.

72 Fourth, the bulk of the building is determined not only by its height but also the length of the facades and their degree of articulation. I accept that there is a degree of stepping in height and the length of building but this is not enough to alleviate its bulk to the extent that it is characteristic of area.

73 Mr Vickas provided computer models of the building which, except for the roof landscaping, were generally not disputed as illustrating the form of the proposal.

74 While the second level above ground is set back from the side boundaries a maximum of 6m this does not alleviate the bulk of building when viewed from street. The width of the main façade along the street front is about 18m and a considerable length of the side façade is also visible from the street along the eastern boundary, above the villas.

75 The eastern and western elevations provide a length of around 45m with 37m of this being two storeys above ground. Even accepting that the attempts by the applicant to provide some articulation through varying setbacks and the use of different materials and features on the elevation has provided some interest and partially reduced the visual appearance of the building from adjoining properties, the building nonetheless still appears as a single entity and will have a significant visual impact on the villa houses.

76 The roof terrace is not characteristic of the area, which has predominantly pitched rooves. However, I accept that the benefits of providing a roof terrace and the non domestic nature of the building, do not necessitate the provision of a pitched roof, provided the roof terrace does not unreasonably increase the bulk and height of the building.

77 In addition to the measures mentioned above, the bulk of the building could be reduced by setting the planter boxes on the roof further back from the street wall and reducing the size and simplifying structures such as the butter fly roof.

78 The third stage identified in Marina Bay is to determine whether the proposed development satisfies the other relevant principles in cl 33. For similar reasons discussed above, the design principles in cl 33(c), (d) and (e) are not met.

79 For these reasons, I find that the proposed development does not demonstrate that adequate regard has been given to the design principles in cl 33(a) as it does not recognise the desirable elements of the location's current character to the extent that it contributes to the quality and identity of the area. I am also not satisfied that adequate regard has been given to the design principles in cl 33 (c), (d) and (e). The application must therefore fail.

Landscaped area 80 Mr Vickas and Mr Burrell agree that the landscape area does not meet the numerical requirements of either SEPP 2004 or DCP 40.

81 Technically the roof top terrace is not included as landscaped area under SEPP 2004, therefore the proposal provides about 408sqm (or about 7sqm per bed) whereas SEPP 2004 would require 1450sqm (25sqm per bed), which is about 80% of the site. If the roof terrace is included the proposal provides 1334sqm (or about 23sqm per bed).

82 SEPP 2004 does not provide objectives for the landscape control. To provide guidance as to these objectives, Mr Burrell referred to the Department of Planning Guide to Housing for Seniors or People with a Disability which states: A potential conflict arises in relation to landscaping. The redevelopment of many existing residential care facilities or even new residential care facilities in established areas will be on sites that would not allow much land to be set aside the landscaping while achieving a 1:1 fsr. The most important external issues for these sites are the impacts on streetscape and neighbours. High amenity for residents can be achieved within the building without meeting a high landscape area standard. The clause 70 [now 48] landscape standard of 25sqm per bed, ie a standard that cannot be used to refuse consent, is not a minimum standard per se, that must be met. It is possible and reasonable for consent to be given to facilities that have less than 25sqm per bed landscaped area if they take other issues such as streetscape and impact on neighbours into account. 83 Mr Burrell concluded that the objectives of the landscape area standard were: o to provide a high level of amenity for residents o to maintain an attractive streetscape, and o to minimise adverse impacts on neighbouring properties 84 Mr Vickas also provided objectives for standard, which although expressed differently, were similar to those provided by Mr Burrell.

85 Mr Burrell and Mr Vickas held different opinions as to whether the objectives of the standard were met.

86 Mr Burrell stated that the roof terrace and other areas provided more than adequate and safe areas to meet the needs of the occupants. The proposal provides adequate landscaping at the street front and between other developments. In his opinion the landscape objectives are met.

87 Mr Vickas agreed that a proportion of the landscaped area could be provided above ground level (approx 25%) but considers that there was an inadequate landscaped area at ground level to provide appropriate amenity for residents, reinforce the landscape character of the area and provide a buffer between adjoining developments. In particular, he noted that the terrace areas would require screens (up to 1.8m high) if they are to be safely used by dementia patients and that this will reduce the amenity of these areas. Further, he states that the solar access to the ground level open space at the rear is poor and that there is no private open space at ground level, which provides adequate amenity.

88 Under DCP 40, the experts agree that the proposal provides about 38% of the site as landscape area (which includes paving, areas over the basement and part of the above ground area, including the roof terrace) of which 12% is soft landscaping.

Findings 89 Clause 48(c) of SEPP 2004 provides that consent cannot be refused for a residential care facility if a minimum of 25 sq m of landscaped area per residential bed is provided. Landscaped area is defined in cl 3 as: landscaped area means that part of the site area that is not occupied by any building and includes so much of that part as is used or to be used for rainwater tanks, swimming pools or open-air recreational facilities, but does not include so much of that part as is used or to be used for driveways or parking areas. 90 Clause 16 of the DCP 40 provides requirements for landscaping, recreation areas and open space. Clause 16.1 provides that a minimum of 40% of the site for a two-storey building and 50% for a three storey building is to be allocated as landscaped area and natural/soft landscaping is to be a minimum of 35% of the site area.

91 Under DCP 40 "landscape Area" and "Natural/Soft Landscaping" are defined as: "Landscaped Area" means the part of the site not occupied or covered by any buildings, which is predominantly landscaped by gardens, lawns, shrubs and trees and is provided for the enhancement of the appearance of the site and the enjoyment of its residents. Landscaped area also includes any pathways, swimming pools or other outdoor recreation facilities and landscaped decks over underground carparking structures, but excludes parking areas, driveways, garbage storage areas and clothes drying areas.

"Natural/Soft Landscaping" means that part of a site which is not occupied by any building structure, swimming pool, tennis court, driveway etc, and is vegetated with gardens, lawns, shrubs or trees, but does not include any paved area. 92 The proposal does not meet the numerical requirements of either SEPP 2004 or DCP 40.

93 However, I am satisfied that at least part of the rooftop recreational area should be included in the amount of open space, as it provides a usable area with appropriate amenity for residents. It is conveniently located via the lift from the accommodation levels and is importantly accessible for residents who may have a disability and require a wheelchair or some other form of transport for mobility.

94 However, the issues raised by Mr Vickas in relation to the screening that would be required for dementia patients to the terrace areas would need to be addressed through the provision of an area, preferable at ground level, which is safe with good solar access. This is preferable to requiring that all above ground areas to be screened, which would reduce their amenity and add to the bulk of the building.

95 On balance, I am satisfied that the proposal could provide adequate open space for use by the residents. However, for the reasons which I have discussed above, I am not satisfied that the proposal provides adequate landscaped areas to meet the other objectives of the standard identified by both Mr Burrell and Mr Vickas. The landscape area is not in character with the streetscape and is not in scale with the development to soften and screen it and provide an appropriate buffer with other development.

Floor Space Ratio 96 Mr Burrell and Mr Vickas held different opinions whether the FSR of the proposal was just over or just under 1:1. The difference of opinion was a result of the different interpretation of the definition of gross floor area (GFA) in SEPP 2004, in particular, whether the covered part of the car park ramps should be excluded.

Findings 97 Clause 48(b) of SEPP 2004 provides that consent cannot be refused for a residential care facility on the grounds of density and scale if the FSR is 1:1 or less.

98 However, consistent with the decision of Lloyd J in Marina Bay, as the application does not satisfy cl 32 of SEPP 2004 it must fail, and the development standards in cl 48 do not become relevant. It is therefore not necessary to deal with the competing submissions of Mr Cole, for the council, and Mr Pickles, for the applicant, on the definition of GFA.

99 I note that whether or not the covered ramps are included in FSR, they add significantly to the bulk and the resultant impact of the proposal, which could be reduced if the entry and exit were combined into one ramp.

Visual and acoustic privacy 100 Mr Burrell and Mr Vickas agreed that privacy screens were required for the rear terrace and that 18 out of 29 rooms would require privacy measures, such as louvres, to prevent overlooking of adjoining properties. Mr Vickas considered more windows would require privacy treatment but stated that with these measures acceptable privacy could be achieved. However, he raised concerns that the privacy measures would impact on the amenity of the residents of the building by limiting the outlook and solar access to bedrooms, which are occupied for long periods of time.

101 Further, Mr Vickas considered that the privacy screen to the rear terrace and the planter boxes to the roof terrace would add to the bulk of the building and increase the impact on adjoining residents.

102 Mr Atkins and Mr Koikas agreed that the proposal could meet the relevant noise criteria with the incorporation of certain measures such as the placement of the air conditioning plant in the basement, acoustic screens and closure of the "gap" above the car park ramp.

103 The experts noted that the windows of the ground floor bedrooms in the development adjoining the car ramp would need to be closed and the rooms mechanically ventilated. Mr Atkins was also concerned about the noise that may emanate from the bedrooms of the proposal, particularly at night, given their proximity to the bedrooms at 37 Evans Street and that these would also be required to be closed and mechanically ventilated.

Findings 104 Clause 32 provides that consent must not be granted to a development application unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles set out in Division 2. Relevantly, cl 34 addresses visual and acoustic privacy and states: 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. 105 The visual and acoustic privacy issues can be addressed by the proposal. However, some measures result in other impacts. In particular, the privacy screens required for the windows will reduce the amenity of these rooms for the occupants of the building who may spend a relatively large part of their day in the rooms. In addition, all of the bedrooms in the 45m length of the building, except for two at ground level, have windows that face the adjoining properties to the side. While the privacy issues may be addressed, it would appear that adequate regard has not been given to the location and design of these windows. Although, of itself, this would not be a reason to refuse the application. Solar access and design for climate 106 During the hearing, Mr Burrell and Mr Vickas considered the overshadowing impact of the proposal on the adjoining villas. They estimated that in midwinter there would be no increase in overshadowing at ground level between 12 and 3pm. There would be a loss of sunlight to people standing in the courtyards and a reduction to some windows of about 15 minutes. Increasing the setback of the parapet may reduce the impact, however, this was not certain from the evidence.

107 Mr Vickas raised concerns about the solar access and amenity to the bedrooms adjoining the covered driveway (2, 3, 9 and 10). Although he acknowledged that these rooms are likely to be used only for a short period as other rooms become available and he accepted that they were a small proportion of the overall development. These rooms will also require mechanical ventilation.

108 Mr Vickas was also concerned about the solar access to the dining areas, which he considered could be improved by an alternate design.

Findings 109 Clause 35 addresses solar access and design for climate and states: 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. 110 The amenity of the four bedrooms adjoining the driveway is sub optimal. The deletion of one driveway could improve the amenity of at least two of these rooms. While the number of rooms is proportionally small, I do not accept that adequate regard has been given to the amenity of these rooms. Although this, and the other matters raised by Mr Vickas, of themselves , would not be sufficient reason to refuse the application.

Other issues 111 The other issues raised by council in relation to compliance with the BCA, certification of bed numbers, retention of the tree adjoining the site at 37 Evans Street, the zone objectives and the public interest would not warrant refusal of the application. The residents also raised issues relating to car parking and traffic. In the absence of expert evidence to the contrary, I am satisfied that council has adequately addressed this issue given that the amount of car parking satisfies the requirements of the Policy and as such cannot be a reason for refusal and the impacts on traffic were considered acceptable. Orders 112 The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application (2010/8) for demolition of two existing dwellings and the construction of a residential care facility for 58 residents in 29 rooms with basement parking for 17 cars at 39-41 Evans Street, Sans Souci is refused. 3. The exhibits are returned.

      Annelise Tuor
      Commissioner of the Court

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At a glance

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Judgment (103 paragraphs)

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