//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] NSWLEC 1210
Land and Environment Court (NSW)
2012-07-26
Original judgment source is linked above.
Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10203 of 2012
Judgment 1This is an appeal in relation to the refusal of Development Application No10/DA-74 by Hurstville City Council. That application proposed the construction of alterations and additions to an existing residential care facility and the consolidation of the site under the provisions of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (SEPP). 2The issues in the appeal are whether:
The site and its context 3The Fairlea Aged Care Nursing Home operates from premises known as 9A-11 Hawk Street, Penshurst and caters specifically for women including those with dementia. The facility currently provides 25 low care beds and 47 high care beds and is conducted from a one and two storey building that was most recently extended in 2004. A basement carpark for 8 cars is below the newer two storey wing. 4The existing site comprises two adjoining allotments, Lots A and B in DP 406076. These are irregular shaped lots with a combined area of 2796 sqm and frontage of 19.5 m to Hawk Street and 55.45 to Philip Lane. 5The site of the proposed new wing is described as No 8 Queensbury Road and comprises Lot 15 in DP 8266. That lot has a frontage of 15.24 m, depth of 45.72 m and area of 836.1 sqm. It shares common boundaries with Nos 6 and 10 Queensbury Road, (for their entire length), No 9 Hawk Street, (across its rear boundary) as well as the southern portion of the nursing home site. 6It is proposed to consolidate the three allotments to allow a connected and integrated development. 7The development site is surrounded by residential development in the form of detached housing. The subdivision pattern is irregular and lot sizes vary in area and shape. Housing comprises one and two storey dwellings of various eras. A dual occupancy development is located opposite the nursing home and there are multi-unit housing developments, in the form of villa houses further north and west of the site.
The proposal 8The application subject of this appeal seeks consent to carry out alterations and additions to the existing building and construct a new wing on adjoining land known as No 8 Queensbury Road. 9The extent of alterations and additions to the existing building is described in the council's amended Statement of Facts and Contentions, Exhibit 1 and primarily involves minor additions and internal changes to the use of areas. None of the work to the existing building, apart from its connection to the new wing and extension above existing stairs, is controversial. 10The works to be carried out on the Queensbury Road site involve:
The planning controls 18The site is within Zone 2 Residential under Hurstville Local Environmental Plan 1994 (LEP). The development would be prohibited under the provisions of the LEP. 19State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP) applies to the site. Clause 2 of the SEPP sets out its aims which are: 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. 20Under the SEPP, the development would be defined as a residential care facility, a form of seniors housing and, pursuant to the provisions of clauses 15 and 16, all forms of seniors housing are permitted with consent in Zone 2 if they are carried out in accordance with the policy. The council is satisfied that the site is located in proximity to the services required by clause 26 however, contends that the applicant has not provided sufficient evidence in relation to the water and sewer servicing requirements under clause 28 which state:
The evidence 31The hearing commenced on site and evidence was heard from a number of objectors to and supporters of the development. The view included observation of the development site from adjoining properties and from within the existing nursing home. 32The issues raised by the objectors are summarised as being:
Clause 40 36The parties disagree whether the provisions of clause 40 of the SEPP, specifically sub-clause (3) which requires a minimum site frontage, when measured at the building line, of 20 m, applies. It is the applicant's position that the site has only one frontage and that is the existing site entry point off Hawk Street/Philip Lane and that combined frontage is 74.95 m. The Court notes that the evidence does not provide width of the site at the building line at this frontage however, it is satisfied that it would significantly exceed 20 m. The applicant says that because all entry to the development, other than staff carparking, is from Hawk Street and because No 8 is contiguous to and will be consolidated with the existing nursing home, Hawk Street is the site's frontage and Queensbury Road is its rear entry. Mr Wright, for the applicant submits that clause 40 is to be read in the singular as it refers to site frontage and not site frontages. 37Mr Young concedes the site will retain an address to Queensbury Road, that there is a need for the development to address that road in a design sense, that the site has more than one frontage and there is to be operational access for loading and staff access from that road however maintains the main entrance is off Hawk Street and for that reason, this is the site frontage. 38Mr Turrisi disagrees and says the Queensbury Road site has a frontage and that it is less than 20 m. Similarly, Mr Seton, for the council, submits that a site can have more than one frontage, that this site has two frontages, that the SEPP does not distinguish between a frontage that provides the main access to a site or its secondary frontage, that the majority of development the subject of the application will take place on the Queensbury Road site and all of the development on that site faces Queensbury Road, that the applicant's expert has acknowledged there's a need to address that street and that there is a building line to Queensbury Road.
SEPP 1 objection 39Mr Young prepared an objection to the development standard contained in clause 40(3) of the SEPP following a conciliation conference held before another Commissioner of this Court prior to the hearing. Whilst not conceding the development standard applied, the objection was lodged to allow the matter to proceed in the event that the Court found the standard applied. 40Applying the principles outlined by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, Mr Young noted that the SEPP does not specifically express any objective relevant to the development standard. He concludes the objective to be:
DCP setback 48The experts agree the proposed front setback to Queensbury Road is equal to or behind a line drawn between the setbacks of the adjoining dwellings on either side of the proposal and that the failure to comply with the 6 m setback control contained in the DCP is 0.145 m at one point only at the ground level and 0.8m from the first floor. They also agree that the provisions of clause 33(d) of the SEPP apply in regard to the front setbacks and this clause requires a development to 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. 49Mr Young says the proposed building line has been established by the commonly accepted practice of drawing a line between the adjoining buildings and proposing the building to be constructed behind that line as part of and in sympathy with the existing building line, citing the building line for the garage of No 10 is less than 5 m while that of No 6 is 6 m. He says that the proposal whilst not necessarily the same as the existing building line, is considered to meet the design principle of clause 33(d). 50Mr Turrisi says the non-compliance is minor and because there is no site constraint that would prevent compliance, it should be setback 6 m however, he did not cite any adverse impact that arises as a result of the proposed building line.
Clause 32 and the Design Principles 51The experts agree that the local area against which the development is to be assessed is that area on both sides of Queensbury Road between George and Argyle Streets, Philip Lane and to No 1 Hawk Street. They also agree that the overshadowing impacts of the development, whilst casting additional shadows onto adjoining properties, complies with the controls of the council and those contained in AMCORD. 52Mr Young says the bulk and scale of the proposal as a residential care facility linked to an existing residential care facility is satisfactory in this location and does not require a single storey rear limitation. He says the development must be considered across the site as a whole, and the resultant floor space ratio, at 0.86:1 is less than the 1:1 allowed under the SEPP. Because this ratio is twice that of infill housing allowed under the DCP, any seniors housing development would have a bulk and scale greater than existing residential development but he says the development as designed does not adversely impact on the area. He says the development is of good design and satisfies the objectives of the SEPP as set out in clause 2 and the design principles contained in that policy but, will, because of those controls, be different to other forms of housing existing and proposed in the area. 53Mr Turrisi disagrees and says the proposal is not of good design and does not reflect the area's context and for that reason, is in conflict with aim 1(1)(c) of the SEPP. He says there has been a lack of contextual assessment to manage the interface of the neighbouring properties both in terms of scale and impact and the aim of clause 2(2)(b) is also not achieved. 54Mr Young says the proposal responds to the site and its characteristics and form particularly its linking with the existing residential care facility and its juxtaposition to the existing site and its length. 55In regard to the height control contained in clause 48(a) of the SEPP, Mr Young says the enclosed entry staircase and lift which provide access to the roof terrace from a built element of approximately 12.5 m in height which is above the 8 m controls that, if met cannot be used as a reason to refuse consent. He says the proposal is not in conflict with this clause and the element in excess of 8 m is located towards the rear of the building to maintain consistency with the streetscape and adjoining building heights of Queensbury Road and adopts the opinion of a council officer in their report in relation to the application which stated the enclosure is not a floor and therefore, the height of that element is not a reason for refusal. 56Mr Turrisi disagrees and says that the height and scale of the development are in direct conflict to the considerations included in clauses 33(a) and (c). 57Mr Young has a similar opinion in relation to the non-compliance with the amount of landscaping and says that the 13 sqm per bed proposed exceeds the 12.6 sqm currently provided and that it is not a reason to refuse consent. He concludes the proposal meets the design principles set out in clause 33. Mr Turrisi disagrees and says the significant departure from the 25 sqm requirement is a demonstration that the building footprint and the overall scale is inappropriate having regard to the impacts the proposal will have on adjoining properties and that a lesser footprint, with additional landscaping on site will align with the low density character of the area and reduce the scale and walling affect onto the adjoining properties. 58Mr Turrisi says the proposal will result in an unacceptable scale to its rear, which will impact the amenity of the adjoining properties and, compounded by the lack of articulation of the building along its side boundaries and the walling effect created by the linkage of the new building with the existing facility results in a two storey building along the entire rear and side boundary of No 10 Queensbury Road. He says this is not characteristic of the low density residential area and submits that No 6 is also impacted but to a lesser extent however, he raises privacy concerns in terms of the balconies located along the common boundary to that property and says that this is not satisfactorily addressed through the screens proposed but agrees that horizontal screens would go some way to addressing the impact. Mr Young says the rooms and balconies will be used infrequently and any privacy of acoustic impact would be similar to or less than what would occur in a typical residential dwelling/backyard.
Outstanding information 59Of the issues raised in the amended Statement of Facts and Contentions, the council pressed the issue of service requirements included in clause 28 of the SEPP. It says the Court cannot be satisfied, by way of written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage. 60The applicant tendered, as exhibit F, correspondence from Whipps-Wood Consulting that advises that company had reviewed Sydney Water infrastructure diagrams and confirmed that a 150 mm water main is available for connection in Queensbury Road and a 150 mm sewer main traverses the site between the rear boundaries of No 10 and No 6 Queensbury Road and is available for connection. A copy of that plans was included with the correspondence. Mr Seton submits that there is no evidence that the facilities are adequate for the demands generated by the development. Mr Wright submits that exhibit F provides clear evidence that both water and sewer is available to the site and that, in accordance with usual procedure, the applicant, if consent is granted would have to pay for any amplification works required by Sydney Water by way of obtaining a s73 Developer Certificate.
Issues raised by objectors 61The first four issues raised by objectors and detailed in [32] are addressed above. The council did not raise in its contentions issues of parking and traffic or stormwater. From the evidence provided to the Court, the parking proposed satisfies the provisions of clause 48(d) of the SEPP and, if met, are standards that cannot be used to refuse consent. 62The council's without prejudice consent conditions include conditions that address stormwater management and there is no evidence before the Court that the development will have any adverse impacts in regard to the collection and disposal of stormwater. 63It is apparent that the operators of the nursing home need to develop improved communications with neighbours, particularly when alarms are triggered or tested and ensure balcony lights are not left on.
Conclusion and findings 64It is clear that there is a need for high quality aged care in the vicinity of the site and, from the evidence provided to the Court, the application before it would, if approved go towards increasing the supply of that care in accordance with the aims of the SEPP. That factor alone however, is not the only consideration of the Court. The SEPP includes a number of matters, considerations or standards that must be taken into account and the consent authority satisfied of, before consent can be granted. In particular, in regard to the subject application, the provisions of clauses 26, 28, 30 and 32. In addition, the development standards contained in clause 40 must be satisfied where applicable, or be the subject of variation under SEPP1. 65The parties agree that the site is appropriately located in regard to those services required by clause 26 of the SEPP. 66From the evidence provided, particularly the plan attached to Exhibit F, I am satisfied that the site can be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage in accordance with the requirements of clause 28 of the SEPP. These services are currently available to the site and, if necessary, would have to be amplified at the cost of the applicant. There is nothing to suggest that this is not possible. 67Lloyd J in Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41, deals with the provisions of clauses 32 (then 30) and 33(a) (then 31(a)) in particular, and provides guidance in their application, noting his comments refer to an earlier version of the SEPP. 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). 68With regard to the site analysis provisions of clause 30 and the design principles referred to in clause 32 and detailed in clauses 33-39, whilst I am satisfied that the information required and analysed under clause 30 is sufficient to assess the application, I am not satisfied that the design of the development has sufficient regard to the principles contained within Division 2 of the SEPP. 69That is because, having regard to the evidence provided during the hearing, I am not satisfied that the development has been designed to satisfactorily recognise the desirable elements of the location's current character or contribute to the quality and identity of the area, particularly in terms of building setbacks from the side boundaries, the area available for landscaping and the bulk of the works which do not maintain reasonable neighbourhood amenity, particularly in relation to Nos 6 and 10 Queensbury Road. 70Having the benefit of the site view, it is apparent that the location's current character comprises one and two storey dwelling houses with rear yards of various size. The experts agree it is not an area undergoing transition. Where development is two storeys, the bulk of that building does not occupy the majority of the site. It is either broken into single and two storey elements or there are relatively large open areas of backyards provided to break the bulk of those two storey elements. In the case of multi-unit housing, the majority of those buildings are single-storey villa houses and are not comparable in terms of bulk and scale to the proposed new wing. I recognise that the most recent addition to the nursing home is a two storey structure built in close proximity to the side boundary, this is not representative of the primary character of the location, it is a discordant element in that location and, from the evidence provided by the neighbour, does contribute to loss of amenity to the adjoining premises. 71Whilst I accept that the SEPP provides for greater building floor area in terms of floor space ratio, I am not satisfied that the floor space has been appropriately distributed across the site. The concentration of built form on the Queensbury Road allotment results in unreasonable amenity impacts to the adjoining properties. I agree with Mr Turrisi that the lack of articulation of the building along the side boundaries, particularly adjacent to No 10, and the linkage of the existing building to the elongated, new wing, for a length in excess of 48 m, creates a walling effect to that property. All of that length is two storeys and, at the lift/stairwell, it is the equivalent height of a 3 storey building. 72Finally, roof terraces are not characteristic in the area, which has predominantly pitched roofs. The reliance on the rooftop terrace to provide landscaped area is further demonstration that the desirable elements of the location i.e. the ground level, vegetated backyard spaces and open areas are not recognised in the design and the planting proposed is not considered to be in sympathy with other planting in the streetscape. The linkage of the existing and facility necessitates the removal of a significant tree recognised to be of high retention value. 73Given the scale of the proposed building, landscaping is an important consideration in its design to screen and minimise the impact of the building from adjoining properties. The minimal side boundary setbacks and the need to provide pathways at critical locations to service fire egress means that narrow areas are available and they do not provide for substantial planting. I do not agree with Mr Young that the planter area adjacent to the 'link' structure is of sufficient width to allow for planting to render the bulk and scale of that structure satisfactory. 74I consider the proposed setback to Queensbury Road is appropriate. 75These conclusions mean, that in accordance with the provisions of clause 32 of the SEPP, consent cannot be granted and the application must fail. 76I turn to the development standard of site width and, having considered the evidence and had the benefit of a site view, I am of the opinion that the site has two frontages, one to Hawk St/Philip Lane and the other to Queensbury Road. Accordingly, the provisions of clause 40(3) of the SEPP apply. This finding is consistent to that of Bly C in Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014 where, at [53] the Commissioner states: 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. 77For similar reasons to those which lead me to the conclusion that the design of the development is not appropriate, I conclude that the objection to the lot width development standard should not be allowed. The proximity of a large, bulky building in close proximity to side boundaries for the length of the site with minimal opportunities to provide substantial landscaping demonstrates that the development as designed is not suited to a narrow site. Having regard to the principles in Wehbe, I agree with Mr Turrisi that the objectives of the control are not met and accept his view that the provisions of clause 33 of the SEPP inform those objectives. 78Whilst I accept that the objects of the Act would be achieved through the extension of the nursing home, it has to be done in an orderly way without having adverse environmental impacts. 79If I am wrong and the Queensbury Road property does not have a "frontage", the application cannot be approved due to the failure to address clause 32 of the SEPP, despite the issue of the development standard. That is because the design of the proposed development does not have adequate regard to the design principles contained in the SEPP. 80It is apparent that there is a need for additional beds in the location however, a more appropriately designed building would be required to meet this requirement. It is not a matter of deleting balconies of changing plant species, a major re-work of the proposal is necessary and consideration of either including additional land or relocating building bulk across the site should be given. 81The Orders of the Court are: (1)The appeal is dismissed; (2)Development application 10DA-76:3 which proposed alterations and additions to the existing residential care facility including new two storey extension and consolidation of the site is refused consent; and (3)The Exhibits, other than Exhibits A, C and 1 are returned.
Sue Morris Commissioner of the Court
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. Decision last updated: 03 August 2012
Oreison Pty Ltd
Hurstville City Council