Pathways Property Group Pty Ltd v Ku-ring-gai Council

The site

1. The site is rectangular in shape with a frontage of 111.85m to Greengate Road and a maximum lot depth of 44.67m and an area of approximately 4,840.4sqm. It site contains Killara Gardens, a three storey brick/render and stone tile roof aged care facility containing 74 beds and Abbotsholme, a three storey rendered tile roof building containing 31 beds.
2. The site slopes upwards from north to south, with level of RL 116.38 in the road reserve and RL 119.73 in the rear setback area. The front garden of Abbotsholme incorporates a high raised garden bed with trees and shrubs adjacent to the front boundary with paved paths adjacent to the front elevation. Abbotsholme building has setbacks of 9.2m to the front (northern) boundary, 5m to the side (western) boundary and 2.8m to the rear (southern) boundary.
3. The section of Greengate Road bordered by the Pacific Highway to the west and the North Shore rail line to the east is predominantly characterised by 1-2 storey dwelling houses. The dwelling-houses date from the 1920-1945 era. Notable buildings includes the Greengate Hotel on the northern corner of Greengate Road and the Pacific Highway.

Relevant planning controls

1. The site is zoned R2 Low Density Residential under Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). Clause 2.3(2) provides that "regard" is to be given to the zone objectives when considering a development application. The R2 zone objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
2. The zone objectives, particularly the objective addressing compatibility with the "existing environmental and built character of Ku-ring-gai" is addressed as part of the discussions on the other contentions raised by the council.
3. The Greengate Hotel and the dwelling houses at 20, 23 and 31 Greengate Road and 4 Powell Street are listed as heritage items in Sch 1 of LEP 2015. That part of Greengate Road located on the eastern side of the North Shore rail line is identified as a heritage conservation area in LEP 2015.
4. Clause 5.10(4) provides that: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
5. Approval is sought through the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors) for the proposed development. Clause 40 of SEPP Seniors provides minimum sizes and building height development standards. The proposed development satisfies the development standard for site size (cl 40(2)) and site frontage (cl 40(3)) but does not satisfy the height standards in cl 40(4)(a), (b) and (c). These are: (4) Height in zones where residential flat buildings are not permitted if the development is proposed in a residential zone where residential flat buildings are not permitted: (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). (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. (c) a building located in the rear 25% area of the site must not exceed 1 storey in height.
6. In response, the applicant has provided three separate written requests under cl 4.6 to show why strict compliance with the development standards is unreasonable or unnecessary. The height standards in cl 40(4) apply to the application as residential flat buildings are not permissible in the R2 zone under LEP 2015.
7. Clause 48 provides standards that cannot be used to refuse development consent for residential care facilities. The relevant standards are: (b) Density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less, (c) Landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided, (d) Parking for residents and visitors: if at least the following is provided: (I) 1 parking space for each 10 beds in the residential care facility (or 1 parking space for each 15 beds if the facility provides care only for persons with dementia), and (ii) 1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time, and (iii) 1 parking space suitable for an ambulance Note: The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent.

Can the variation to the height standard be supported?

The standard (4) Height in zones where residential flat buildings are not permitted if the development is proposed in a residential zone where residential flat buildings are not permitted: (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).

The requirements

1. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

The height objectives

1. There are no objectives for the height standard in cl 40(4)(a). Expert town planning evidence on this matter was provided by Ms Sue Francis for the applicant and Mr Jonathon Goodwill for the council. Ms Francis and Mr Goodwill adopt different objectives for the height standard. In the cl 4.6 written request, Ms Francis adopts the following objectives: To ensure that the development does not dominate the streetscape by virtue of its scale and bulk and is consistent with the character of the area. To ensure compatibility with the streetscape and existing context. To not cause unreasonable amenity impacts on adjoining developments.

The extent of the breach of the height standard

1. Height is defined in cl 3 of SEPP Seniors to mean: 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.
2. The extent of the breach of the height standard was shown diagrammatically in the cl 4.6 written request (see below for cross section showing variation to 8m height standard). The proposal has a maximum height of 9.78m to the top of the lift over run although there was agreement that this height could be reduced (see par 97).

The written request

1. The written request states that a variation to the height standard is unreasonable and unnecessary because it is consistent with the nominated objectives. To ensure that the development does not dominate the streetscape by virtue of its scale and bulk and is consistent with the character of the area.
2. Abbottsholme is three storeys in height to Greengate Road however, given the site has been excavated when previously developed it has a height similar to that of a two storey building. In addition, the existing streetscape is characterised by landscaping within the front setbacks and the existing facility has comprehensive landscaping within this setback which also assists in reducing the bulk and scale of the existing building. The bulk associated with the increased height has been setback away from Greengate Road and centrally located so that the proposed mansard roof does not dominate the streetscape. Accordingly, the increase in the building height does not have any adverse impact to the streetscape in terms of bulk and scale particularly given the existing built form on the site and its neighbouring Killara Gardens. The breach of the height standard is consistent with and achieves this objective. To ensure compatibility with the streetscape and existing context.
3. Abbottsholme and Killara Gardens presents as a three storey building to Greengate Road. The property adjoining the site to the west (7 Greengate Road) is currently a single storey detached dwelling however this property has not been developed to council's anticipated/desired future character. Killara Gardens and Abbottsholme both form the dominant character feature of this part of Greengate Road; they are the existing character. In this respect, the proposal is compatible within the streetscape as the existing streetscape includes the existing built form of Abbottsholme and Killara Gardens. which attribute to approximately 50% of the southern side of Greengate Road frontage within the R2 zone.
4. In addition, the proposal has been amended to change the presentation of the northern facade fronting Greengate Road, to provide a more aesthetically pleasing building. The amended elevation now includes similar architectural treatments to Killara Gardens. To not cause unreasonable amenity impacts on adjoining developments
5. There are various impacts that are associated with amenity to adjoining properties. First, overshadowing. In this regard, the proposal has been amended to reduce some minor overshadowing that occurred to two bedroom windows at 7 Greengate Road through the removal of one bedroom (previously bedroom 12). The proposal does result in some additional overshadowing to rear yard of the adjoining property at 7 Greengate Road, 4 Powell Street, and 6 Powell Street, as well as some shadows cast onto the facility itself. The only affected window of the Killara Gardens building is that of a bedroom located on the lower level. All other windows along this elevation are unaffected by the proposed development.
6. The facility as a whole receives high level of solar access throughout the day. The overshadowing to the rear open space of the adjacent properties is considered minor given that these properties receive adequate sunlight to these areas throughout the day
7. Second, privacy and overlooking impacts. The proposal does not result in any parts of the building above the height standard that would result in any loss of privacy or overlooking to adjoining properties. The windows from the rooms within the roof are dormers, which have limited views out towards the boundary. Further, these windows are situated a minimum of 6.1 m from the western boundary (7 Greengate Road) and 8.55m from the southern boundary (4 Powell Street). The proposed upper level has included additional setbacks to the existing lower levels, which are currently setback approximately 3.3m and 3.1m from the boundaries to the existing balconies. The additional dormer windows within the new storey will not have any adverse amenity impacts. The external terrace on Level 6 that was originally proposed has been removed to assist with the perceived loss of amenity to the adjoining properties, and is now proposed to extend the extent of the mansard roof on the northern elevation
8. Third, acoustic amenity impacts. There are no areas of the building above the height standard that would result in any acoustic impact to surrounding properties.
9. Fourth, view loss. There are no significant views in the surrounding area.
10. Fifth, visual impact. The proposal has been designed to ensure that the mansard roof is not visually dominant as viewed from the street and surrounding properties although the visual impact on the heritage item, at the rear at 4 Powell Street was not ultimately pressed by the council. The bulk of the mansard roof has been minimised through maximising the surface areas of the roof as well as angling/pitching the roof. The tallest part of the building, being the lift over­run and the atrium, are located centrally on the roof and are not highly visible from the surrounding area. The bulk and scale of the building will be consistent with the bulk and scale of the existing development on the site. The materials and colours will be consistent with the existing building.
11. Accordingly, despite the non-compliance with the height standard, the proposal achieves and is consistent with the adopted height objectives.
12. The cl 4.6 written request goes onto say that there are sufficient environmental planning grounds to justify the contravention for the following reasons:

• the Statement of Environmental Effects, submitted with the application has demonstrated that the proposal is substantially compliant with the relevant environmental planning framework,
• the alterations and additions are predominately limited to the existing footprint of the building, with the majority of the additional beds being contained within the proposed mansard roof,
• the mansard roof has been setback from the front and rear of the building to reduce its perceived height as viewed from the surrounding properties,
• the maximum breach of the standard is centralised within the building, and consists of the glazed roof over the void,
• the topography of the site is attributable to the extent that the development standard is breached, given the site slopes in both a south to north and a west to east direction,
• the provision of an additional 16 beds to the facility is a better planning outcome through the expansion of the existing aged care facility as it consolidates the built form in a single location rather than ad-hoc piecemeal development,
• the proposed breach of the standard maintains the three (3) storey presentation of Abbottsholme to Greengate Road and to the western adjoining property.
• the existing dwelling on the adjacent property to the west has yet to be redeveloped to council's current planning controls, as such does not reflect the desired future character of the area. With this in mind, the proposal does not result in an inappropriate transition in height to the adjoining property, and
• the proposed amendments to the roof have been designed to minimise its visible bulk and scale to the street and adjoining properties, incorporating a pitched roof appearance, dormer windows, and has been setback from the southern and northern edges of the building.

1. The cl 4.6 written request also states that the variation to the standard is not inconsistent with the zone objectives.
2. Finally, the cl 4.6 written request states that it is well founded because:

• compliance with the development standard would be unreasonable and unnecessary in the circumstances;
• there are sufficient environmental planning grounds to justify the contravention,
• the development achieves and is consistent with the objectives of the development standard and the objectives of the R2 zone, notwithstanding the variation,
• the breach of the standard allows for the provision of 11 additional rooms within the roof (and the additional 5 beds in the lower levels of the building), that will contribute positively to meet the demand for aged care accommodation of the local community,
• the proposed development will not have any environmental impact and is in the public interest and better achieves the development standard's objectives,
• the proposed variation will not hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning & Assessment Act 1979, and
• the variation does not raise any matter of state or regional significance.

The council's response

1. Mr Goodwill, in his evidence, adopts the following objective from De Stoop v Ku-ring-gai Council [2010] NSWLEC 1019 [at 60]: To provide a development that will be compatible with the adjoining residential area and not create adverse impacts having regard to the desirable elements of the location and character of the area.
2. Mr Goodwill notes that an important distinction between his adopted objective and that adopted by Ms Francis is the absence of any reference to "desirable elements" of the locations character in the clause 4.6 variation.
3. As the site already contains a building and for the purposes of determining how the proposed building relates to the context; the building height has been measured from an assumed natural ground line. This is a sloping line projected from the existing ground level on the southern side of the rear boundary to the existing ground level on the northern side of the front boundary. It is acknowledged that this method of measuring the building height may technically understate the variation, however the development standard is breached regardless of the way the building height is measured. If the height was measured from the ceiling of the topmost floor to the soil under the slab of Level 1 the height would be a maximum of 12.8m.
4. Mr Goodwill notes that the cl 4.6 variation states that Killara Gardens and Abbotsholme, "form the dominant character feature of this part of Greengate Road; they are the existing character". This comment regarding the, "dominant character" of the existing buildings demonstrates how the height, massing and setbacks of a building impact on the streetscape. It is agreed that Killara Gardens has an impact on the character of the southern side of Greengate Road however this impact is a result of the length of the street elevation, the 2 to 3 storey height of the street elevation, the landscape treatment of the front setback and built form modulation that does not reflect the characteristic spatial pattern of development in the locality. The development application for Killara Gardens was not subject to the provisions of SEPP 5 or SEPP Seniors as it was assessed as a hospital under the provisions of the Ku-ring-gai Planning Scheme Ordinance.
5. The aims of SEPP Seniors and the Design Principles in Part 3 seek to encourage good design and buildings which recognise desirable elements of the locations character and contribute to the quality and identity of the area. Clause 33 (a) states: The proposed development should: (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area
6. SEPP Seniors requires that development recognise desirable elements of the locations current character and contribute to the quality and identity of the area. The cl 4.6 variation discusses how the proposal responds to the built form of Killara Gardens, however Killara Gardens is not considered a desirable element of the locations character as, in the words of the clause 4.6 variation, 'it is a dominant character feature'. Notwithstanding this concern, the assertion that the proposal is compatible with the built form of Killara Gardens has been considered and assessed.
7. Mr Goodwill states that the objectives of his adopted standard are not satisfied for the following reasons:

• the proposal reduces the amount of landscape area per bed,
• the non-compliance results in additional bulk at the sides and rear of the building which has an impact on the character of the streetscape,
• the architectural treatments do not reduce the impacts associated with the variation to the building height developments standard,
• the height of the proposal is greater than the height of the existing dwelling houses on the R2 zoned land to the west,
• the proposal results in additional overshadowing of the backyard and side elevation of 7 Greengate Road in the morning period,
• the dormer windows do not have privacy screens,
• the bulk and scale of the building is inconsistent with the character of Killara Gardens and the streetscape character which is predominantly a mix of 1 and 2 storey dwelling houses, and
• the cl 4.6 variation justifies the non-compliant height in relation to the adjacent dwelling house at No. 7 Greengate Road on the basis of a theoretical complying development on this site.

1. Mr Goodwill concludes by stating that the height of the proposal is not consistent with the existing or likely future character of the area. Compliance with the development standard is not unreasonable or unnecessary as it has not been demonstrated that the variation is consistent with the development standard objectives which that seek to ensure that development is compatible with the streetscape and responsive to the desirable elements of the locations character

The assessment framework

1. Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).
2. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
3. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

Zone objectives

1. The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. The lack of relevance of the zone objectives to the variation of the height development standard should not be a matter that acts in a negative way so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

Height standard objectives

1. The absence of any objectives in SEPP Seniors for height raises a difficulty but not one that cannot be overcome. Ms Francis and Mr Goodwill adopt objectives for the purposes of the cl 4.6 written request and I prefer the more comprehensive objectives of Ms Francis. Mr Goodwill's emphasis on the "desirable elements of the location and character of the area" is a consideration that can be addressed as part of the objectives of Ms Francis, particularly the need to be "consistent with the character of the area".
2. In relation to the adopted height objectives, I make the following comments; To ensure that the development does not dominate the streetscape by virtue of its scale and bulk and is consistent with the character of the area. and To ensure compatibility with the streetscape and existing context.
3. Ms Francis and Mr Goodwill disagree on the existing character; essentially Ms Francis maintains that Abbotsholme and Killara Gardens form a significant part of the character whereas Mr Goodwill suggests that Abbotsholme and Killara Gardens are not considered a desirable element of the locations character and as such should not be part of the assessed character.
4. On this matter and with the benefit of the site inspection, I agree with the conclusions of Ms Francis. In my view, the reference by Mr Goodwill to Abbotsholme and Killara Gardens as not being "desirable elements of the location and character of the area" is misplaced. These buildings form a legitimate and valid part of the character of Greengate Road and should not be regarded as anything but that. It does not matter if they were approved under a different planning regime than currently exists. In this case, Abbotsholme and Killara Gardens contribute significantly to the character, to the point where Greengate Road could be said to have two distinct characters; the residential development and the separate character of Abbotsholme and Killara Gardens. The two aged care facilities occupy approximately 50% of the southern side of Greengate Road. It is not a matter of having a "predominant" or even a "mixed character" in the Greengate Road area, but in this case, two distinct characters.
5. If considered in this context, the proposed modification does not add height that unacceptably adds to the bulk and scale of the existing building. I agree that the bulk associated with the increased height has been setback away from Greengate Road and centrally located so that the proposed mansard roof does not dominate the streetscape. The landscaped setback to Greengate Road is to be largely retained to maintain the existing landscaped presence in the streetscape. I can comfortably agree with Ms Francis that the increase in the building height does not have any adverse impact to the streetscape in terms of bulk and scale particularly given the existing built form on the site and its neighbouring Killara Gardens. The breach of the height standard is consistent with and achieves the above objectives.

To not cause unreasonable amenity impacts on adjoining developments.

1. The amenity issues relate to privacy and overlooking impacts, loss of solar access, acoustic amenity and visual impact.
2. The issue of loss of privacy relates to the five new dormer windows that face west (Beds 1 to 5) to 7 Greengate Road and four windows that face south (Beds 6 and 7, lounge and aisle). I am untroubled by the south facing windows as the dwelling to the south (4 Powell Street) is some 38m from the rear boundary. The five dormers that face east have a 6.1m setback from the boundary to the face of the glass. The area within the dormer window is relatively small and confined and is designated with a chair to be used as a sitting/reading nook. Three of the dormers would look directly over the existing dwelling (or any new dwelling) and the front yard. The two most southerly dormers would overlook the rear yard of 7 Greengate Road. Given the limited floor area of the dormers, their likely limited use and the dormers providing the only source of sunlight, I do not propose any additional screening on the proposed dormers.
3. Given the use as an aged care facility, it would be reasonable at assume that acoustic privacy would not be an issue.
4. Solar access is addressed through a number of shadow diagrams by the applicant. These show the additional shadow cast be the proposed additions at 9AM, midday and 3PM. The shadow diagrams indicate that at 9AM the alterations and additions will provide additional overshadowing of the rear yard of 7 Greengate Road although a significant portion will still receive direct sunlight at this time. The shadowing moves in an easterly direction off the site during the morning where at midday there is no shadows cast by the proposed building or the alterations and additions. The additional overshadowing created by the proposed development is not significant and would not warrant the amendment or refusal of the application.
5. The property at the rear is 4 Powell Street and the alterations and additions add a sliver of shadow at 9AM and midday and a larger amount at 3PM. Given the very large backyard of this property and the distance the dwelling is from the rear boundary, I am satisfied that the additional overshadowing created by the proposed development is not significant and would not warrant the amendment or refusal of the application.
6. Having found that the visual impact of the proposed development is acceptable in the streetscape, I similarly find that the visual impact is equally acceptable from the east and to the rear because the bulk associated with the increased height has been setback from the site boundaries and centrally located so that the proposed mansard roof is not overly visible.
7. Pursuant to cl 4.6(4)(a)(ii). I find that the proposal is consistent with the adopted objectives of the height development standard.

Is compliance with the development standard is unreasonable or unnecessary?

1. I accept that the applicant has justified the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
2. In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs I accept that the applicant has established this to be the case.

Are there sufficient environmental planning grounds to justify contravening the development standard?

1. For the reasons in the preceding, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.

Can the variation to the number of storeys standard be supported?

1. The principal position of Ms Francis is that a written request under cl 4.6 is not required as the additional height is not a storey but an "attic" for the purposes assessing the number of storeys. If defined as an attic, it is not a storey and the building complies with the two storey standard in cl 40(4)(b) of SEPP Seniors. However, for caution Ms Francis has provided a cl 4.6 written request. The standard 4) Height in zones where residential flat buildings are not permitted if the development is proposed in a residential zone where residential flat buildings are not permitted: . (b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 stores in height, and Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.

The number of storeys objective

1. There are no objectives for the number of storeys standard in cl 40(4)(b) so Ms Francis and Mr Goodwill adopt the following objective for the number of storeys standard: To ensure that the development provides an appropriate relationship in storeys/scale to adjoining side boundaries and to streetscape to avoid an abrupt change in the scale.

The extent of the breach of the number of storeys standard

1. The proposal results in a breach of the standard between a one and two storeys however the existing building currently breaches the standard by one storey already towards the north-western corner of the site (adjacent to 7 Greengate Road) therefore the proposal has an increase of one additional storey for a part of the building.

The written request

1. The written request states that a variation to the number of storeys standard is unreasonable and unnecessary because it is consistent with the nominated objective, for a number of reasons.
2. The proposed additions within the existing roof space have been carefully designed to minimise the bulk and height attributable to these amendments. The amendments to the roof that include additional beds has maintained an angled/pitched appearance to assist in reducing its bulk and scale as viewed from the surrounding properties and the street. The amended plans have removed the external terrace on Level 6, and converted it to an angled 'mansard' roof. This amendment further assists in maintaining the 3 storey presentation of the building as viewed from Greengate Road
3. Windows on Level 6 have also been limited to dormer windows so that the roof surface has been maximised. Further, the proposal only results in a minor increase to the overall building height at point of dormer window. This arrangement will not result in significant increase in the bulk or mass of the development to this adjacent property and will maintain the buildings appearance as a three storey building as viewed from the street and the adjoining property. The written request notes that one of the 'storeys is below the ground level of this adjoining property, and does not contribute to the perceived height in storeys from this property. Also, relevant is the sloping nature of the surrounding topography, with the land sloping upward to the west In addition.
4. It is important to note that the property to the west (7 Greengate Road) has yet to be developed to the current planning controls under the LEP 2015 which permits a maximum building height of 9.5m, and does not currently reflect the desired future character of the area. An indicative plan has been prepared that shows a height compliant building envelope for a dwelling on 7 Greengate Road and demonstrates the anticipated future built form that council seeks on this site is similar to that of the proposed development.
5. Accordingly, the proposal does not result in an unacceptable transition in height or scale to 7 Greengate Road, and it will not result in an abrupt change to the built form once this land has been redeveloped. The proposal has been designed to minimise its bulk and appearance as an additional level to this particular property and to the streetscape. While the proposal does increase the non-compliance with the standard by one additional storey, the proposal is considered to be consistent with and achieves the assumed objective of the standard and strict compliance in the circumstances of this case is unnecessary and unreasonable to achieve the specified objective of the standard.
6. The cl 4.6 written request goes onto say that there are sufficient environmental planning grounds to justify the contravention for the following reasons:

• the existing building currently breaches the storey development standard, being part 2 and part 3 storeys in height;
• the upper level has been designed to minimise its appearance as another level of the building, incorporating a pitched roof appearance, dormer windows, and has been setback from the southern and northern edged of the building,
• the site slopes downwards in a south to north direction, as well downwards from a west to east direction. Parts of the building that are defined as a storey are below the level of the ground as it adjoins the adjacent property, and are not visible,
• the development is largely viewed as a 2 storey building to 7 Greengate Road. From Greengate Road, the building remains to presents as a 3 storey building,
• the existing dwelling on the adjacent property to the west has yet to be redeveloped to council's current planning controls, as such does not reflect the desired future character of the area,
• the adjoining property to the west maintains acceptable levels of solar access throughout the day.
• to achieve compliance with the standard would necessitate the removal of a storey from the existing building. This would result in the loss of beds, and a built form outcome that is inconsistent with the desired future character relative to the anticipated development on the adjacent site,
• the proposal to include an additional 16 beds to the facility, with 11 of these beds situated within the proposed additional storey/mansard roof is a better planning outcome than a new facility elsewhere,
• the expansion of the existing aged care facility is more desirable and beneficial in planning terms because it achieves economies of scale in terms of a facilities duration and consolidates the built form in a single location rather than ad-hoc piecemeal seniors development in other R2 zoned land.

1. Consequently, there is no public benefit in maintaining strict compliance with the development standard given that there are no adverse impacts that will result from the breach of the standard. The variation is therefore considered well founded.

The council's response

1. Mr Goodwill notes that the cl 4.6 variation has been submitted on a 'without prejudice' basis. The cl 4.6 variation states that, 'it could be argued', that the additional floor level is not a storey, but an 'attic' as defined by the Standard Instrument LEP. In his opinion, the 'attic' definition in the Standard Instrument LEP does not apply to the determination of storeys for the purposes of SEPP Seniors as that term and definition is not found in cl 3 'Interpretation' of SEPP Seniors. In the absence of a definition for storey within the SEPP, the word 'storey' takes on its ordinary meaning. Also the additional floor does not satisfy the attic definition in the Standard Instrument LEP.
2. In response to the adopted objective, Mr Goodwill states that neither the characteristics of the site or of the proposal demonstrate that the objective of the development standard is achieved because :

• the additional floor level will increase the wall height of the western elevation by approximately 3.2m and increase building bulk through the demolition of the low pitched hipped roof and replacement with the additional floor level,
• the extent of glazing and bulky form of the additional floor level will mean that it reads as an additional storey containing accommodation from Greengate Road and 7 Greengate Road. The western elevation currently has a 2 storey presentation with a low pitch hipped roof of a style common in the locality. The western elevation of the proposal has a 3 storey presentation by virtue of the steep pitch of the mansard roof (60 degrees) and five dormer windows each with a glazed area of approximately 3sqm. The dormer window structures each have a vertical external plane of approximately 4.8sqm and they occupy approximately 37% of the external plane of the mansard roof, which has an area of approximately 65sqm. The northern-most dormer window has a street setback of 17.8m, which places it forward of the eastern end of the front wall of the adjacent dwelling house at 7 Greengate Road which has a street setback of 19.2m,
• the non-compliance based on the proposed height increase of 3.2m, not being a significant increase in bulk or mass and that a 3 storey appearance is maintained from 7 Greengate Road is not accepted. The proposed additional floor level will transform the western elevation from one which currently reads as 2 storeys to one that reads as 3 storeys, and
• the suggestion that the noncompliance based on the dwellings to the west of the site not having been developed to the current planning controls which allow a maximum building height of 9.5m is not accepted. It is considered unlikely that the existing two storey dwelling house at No. 7 Greengate Road would be redeveloped to a height of 3 storeys, as 3 storey houses do not comply with Ku-ring-gai DCP.

1. Mr Goodwill notes that the cl 4.6 variation states that the proposal will not result in an abrupt change to the built form once Greengate Road has been developed. The building height development standard that applies to the R2 zoned allotments to the west of the subject site is 9.5m measured to the highest part of the building. The construction of 2 storey dwelling houses with a maximum height of 8.5m measured to the highest part of the building is also permitted as complying development under Part 3 of SEPP (Exempt and Complying Development Codes) 2008. The highest part of the proposal is 11.1m (or 10.5m if the lift overrun is redesigned), which does not comply with the 9.5m development standard in LEP 2015 and the 8.5m standard in SEPP (Exempt and Complying Development Codes) 2008.
2. Further, the cl 4.6 justifies the non-compliance against the third of the Wehbe tests (the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable) on the basis that to achieve compliance the height of the existing building would need to be reduced by one storey. It is not agreed that this is the appropriate way in which to apply the test. The requirement for a cl 4.6 variation arises as the proposal seeks to construct an additional storey which changes the height of the western elevation from 2 storeys to 3 storeys.
3. Further, the cl 4.6 variation has not demonstrated that the existing built form of adjacent R2 zoned land is consistent with the height and character of the proposal or that redevelopment of these sites under the provisions of LEP 2015 or SEPP (Exempt and Complying Development Codes) 2008 is likely to result in a character that is consistent with the proposal. The 3 storey height of the western elevation results in an abrupt change in the scale of the streetscape. Therefore the variation to the development standard is not consistent with the objectives of clause 40(4)(b) of SEPP Seniors.

Is the upper level an attic?

1. There is some strength in the argument of Mr Goodwill that the 'attic' definition in the Standard Instrument LEP does not apply to the determination of storeys for the purposes of SEPP Seniors as that term and definition are not found in cl 3 'Interpretation' of SEPP Seniors.
2. Given that Ms Francis has provided a cl 4.6 written request, and for abundant caution, I propose to consider this document for the purposes of determining whether the number of storeys is acceptable, or not.

Zone objectives

1. The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the storey standard is appropriate. The lack of relevance of the zone objectives to the variation of the storey development standard should not be a matter that acts in a negative way so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

Number of storeys standard objective

1. The number of storeys objective seeks "an appropriate relationship" with side boundaries and the streetscape so as to avoid "an abrupt change in the scale". I have taken "an appropriate relationship" to have a similar meaning to the meaning of "compatibility" as set out in the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (at 22) where it states: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
2. "Scale" also has a particular meaning and this is addressed in the planning principle in Veloshin v Randwick Council [2007] NSWLEC 428 (at 29) where it states: 29 …. The terms excessive height, bulk and scale and overdevelopment are probably the most frequently used phrases in councils' Statements of Contention. While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. When scale is used to mean apparent size, it is better to use those words. When scale is used to denote the character of an area, it is better to use that word. …
3. I have addressed the impact of the alterations and additions on the streetscape and found that the proposal is acceptable in this regard so there is no reason to repeat these comments. The following comments relate to the relationship with the side boundaries of the site. Based on the two planning principles; the question to be answered is whether the proposed alterations can exist together in harmony given the relative size of the proposal.
4. In my view, the answer to the question must be yes, for a number of reasons. First, I am satisfied that the proposed upper level has been designed to minimise the appearance of this level through different materials, form and the mansard roof. From 7 Greengate Road, I accept that it will be seen as an extra level but the objective does not discourage three storey buildings but only that if a building is more than two storeys, it must be in harmony with other buildings given the relative size of the proposal. This assessment is not simply an exercise in comparing the different height of the buildings. Second, and accepting that the upper level will be viewed as an additional level, the concerns of Mr Goodwill over the size and visibility of the dormer windows is not a factor that would unacceptably impact on the suitability of the upper level. Third, the setback to the common boundary with 7 Greengate Road of the upper level is between 6.1m and around 9m. Landscaping is to be provided at ground level to provide some screening to the building if not necessarily the new upper level. I accept that there is a generous setback that will help diminish the visual appearance of the new upper level. Fourth, there is some merit in the argument that 7 Greengate Road can be developed to higher potential through the existing planning controls, although it is not a matter that I rely on for its acceptability. A building with a maximum height of 9.5m (measured to the highest point of the building) can be constructed under the current planning controls.

Is compliance with the development standard is unreasonable or unnecessary?

1. I accept that the applicant has justified the contravention of the storey development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
2. In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs I accept that the applicant has established this to be the case.

Are there sufficient environmental planning grounds to justify contravening the development standard?

1. For the reasons in the preceding, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the storey development standard.

Can the variation to the 1 storey height in the rear 25% area of the site be supported?

Is the upper level an attic?

1. There is some strength in the argument of Mr Goodwill that the 'attic' definition in the Standard Instrument LEP does not apply to the determination of storeys for the purposes of SEPP Seniors as that term and definition are not found in cl 3 'Interpretation' of SEPP Seniors.
2. Given that Ms Francis has provided a cl 4.6 written request, and for abundant caution, I propose to consider this document for the purposes of determining whether the single storey at the rear is acceptable, or not. The standard (4) Height in zones where residential flat buildings are not permitted if the development is proposed in a residential zone where residential flat buildings are not permitted: (a) (b) (c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

The 1 storey height objective

1. There are no objectives for the 1 storey height objective in cl 40(4)(c) so Ms Francis and Mr Goodwill adopt the following objective for the 1 storey height standard: To ensure a compatible bulk and mass to protect amenity of adjoining properties sharing rear and side common boundaries.

The extent of the breach

1. The extent of the breach is shown diagrammatically in the written request (p5/15, Fig 3, Section CC):
2. The existing buildings on the site currently breach this standard as there are two storey portions of the buildings within the rear 25% part of the site as indicated above. In this respect, the rear 25% of the site is taken to be that part of the site 11.25m from the southern boundary. The areas of the proposed new upper floor that breach the standard are limited to the new level that is within the converted roof space, approximately 5m wide.

The written request

1. The written request states that a variation to the height standard is unreasonable and unnecessary because it is consistent with the nominated objective because:

• the upper level has been setback further than the existing lower levels to the rear and side boundaries,
• the effective appearance of the building remains as a 2 storey building with attic to the rear and side boundaries,
• 4 Powell Street is situated approximately 46m from the common boundary, and the topography of the land results in that dwelling being elevated in comparison to the Abbottsholme building, so the effective appearance of the proposal as viewed from the dwelling at 4 Powell Street will be one level in terms of bulk and mass given the sloping terrain, and
• the alterations and additions create no unacceptable amenity impacts on 4 Powell Street and 7 Greengate Road.

1. The non-compliance arguably better achieves the objectives of the standard because it has been designed to minimise the extent of building bulk, and the built form remains consistent with the locality. For this particular reason, the variation provides a public benefit and is in the public interest.

The council's response

1. Mr Goodwill states that compliance with the development standard is not unreasonable or unnecessary in the circumstances of the case. The objective of the standard relates to the amenity of adjoining properties regardless of whether they share a rear boundary with the development site. In this case, land to the rear and side of the site is impacted by a building with an additional floor level in the rear 25% area. Construction in the rear 25% area has the potential to impact upon 4 Powell Street to the south of the site and 7 Greengate Road to the west of the site. Both of these properties contain single dwelling houses.
2. Potential impacts on 4 Powell Street include overlooking from the window of Bed 8, visual impacts from the construction of an additional storey and overshadowing. Construction of an additional storey within the rear 25% area will impact upon the privacy of 4 Powell Street as the rear elevation of the new floor level contains four windows. All the windows have a setback of 8.5m to the rear boundary and a sill height of 1m above the proposed floor level. Mr Goodwill considers that the impact of the proposed additional floor level in the rear 25% area is not consistent with the objective of the standard as the addition will have a material impact on the privacy of the backyard of 4 Powell Street through the addition of four windows.

Zone objectives

1. The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the storey standard is appropriate. The lack of relevance of the zone objectives to the variation of the storey development standard should not be a matter that acts in a negative way so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

One storey objective

1. I am satisfied that the nominated objective is satisfied in that the proposed alterations and additions are "a compatible bulk and mass to protect amenity of adjoining properties sharing rear and side common boundaries". The breach of the standard, in numerical terms, is not significant given the size of the site. I adopt the meaning of "compatibility" as set out in the planning principle in Project Venture (at 22) where it refers to compatibility as existing "together in harmony" without having the "same density, scale or appearance".
2. The question of amenity to the adjoining properties has been addressed earlier in the judgment (see pars 45 to 56) even when considered in a broader context for 7 Greengate Road. Similar reasons are equally valid for 4 Powell Street.

Is compliance with the development standard is unreasonable or unnecessary?

1. I accept that the applicant has justified the contravention of the storey development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
2. In Wehbe, Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(4)(a)(ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. For the reasons in the preceding paragraphs I accept that the applicant has established this to be the case.

Are there sufficient environmental planning grounds to justify contravening the development standard?

1. For the reasons in the preceding, I am satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the one storey development standard.

Poor urban design outcomes

1. Mr Markam Ralph provided evidence for the applicant and Ms Kerry Hunter provided evidence on a range of matters associated with urban design. They produced two joint reports that identified areas of agreement for further changes and also changes that Ms Hunter suggested but were not considered necessary by Mr Ralph.
2. The areas where there was agreement to further changes were:

• the reduction in the height of the lift overrun to 0.55m and better integration into the roof design, and
• the specific accessibility requirements to be shown on the floor plans for Units 19 and 21 (see condition 1A).

1. The areas where there was no agreement to further changes were:
2. The absence of natural ventilation for Units 15 and 16: these are existing internal units and the configuration is unchanged except that the natural ventilation is to be denied through the closure of the open atrium. Ms Hunter maintains this creates unacceptable amenity impacts whereas Mr Ralph states that air conditioning will be provided and good amenity will be provided through the enclosed balcony and natural light. While not an optimal result, I agree it is acceptable in the circumstances.
3. Privacy impacts to and from Killara Gardens - this matter relates to the proximity of Killara Gardens to the adjoining conversion of the servery, hairdresser, dining room, lounge room and office to new units 4, 17, 18, 19, 20 and 21. The separation distance is 5m - 6.5m. Ms Hunter states that while this is an existing situation it is unacceptable and will create poor amenity for the new rooms and maintain the existing poor relationship at the interface of the two buildings. Mr Ralph states that it is an existing situation and Ms Hunter's suggestion that the building be demolished is not acceptable nor is her suggestion that the rooms not be used for accommodation. Again, and while not an optimal result, I agree it is acceptable in the circumstances.
4. Ceiling heights to Level 6: Ms Hunter and Mr Ralph agree that the 2.4m floor to ceiling height satisfies the Building Code of Australia (BCA) although Ms Hunter maintains that this height should be increased for better amenity but opposes any overall increase in the building. Given that there is compliance with the BCA I accept that the floor to ceiling height is acceptable.
5. Replacement of existing roof deck; the loss of the existing open roof deck is seen by Ms Hunter as being unacceptable although she accepts that there are benefits for weather protection and the intent to improve the existing communal area. I accept that it is acceptable as the enclosed space provides better utility while still providing natural light.
6. Head height in dormer areas: Ms Hunter notes that the areas occupied by the dormer windows do not satisfy the BCA with a maximum height of 2.3m and a minimum height of 1.95m. This area occupies only a small area of the respective units (that complies with the BCA minimum height requirement). The dormer area has been designated with a chair, presumably for reading near the window and notwithstanding Ms Hunter's concerns; is clearly a suitable area for this activity. I agree it is acceptable in the circumstances.

Parking

1. The council suggested that the on-site parking was inadequate based on information received over stalling levels. The applicant maintained that the staffing levels were acceptable and satisfied the standards that cannot be used to refuse development consent for residential care facilities in cl 48(d) of SEPP Seniors. The applicant agreed to a condition that reiterated this in condition 53, which states: 53. Staff The facility shall have a maximum of 16 persons employed in connection with the facility and on duty at any one time. Reason: To ensure compliance with the application documentation and adequate on site car parking.
2. I accept that the condition satisfactorily addresses the council's concern.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. DA0298/16 for alterations and additions to an existing aged care facility known as Abbotsholme Aged Care Facility at 9-19 Greengate Road Killara is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and G.

G Brown Commissioner of the Court 347670.16 Brown (C) (256 KB, pdf) 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: 05 September 2017