Principal Healthcare Finance Pty Ltd v City of Ryde Council

Land and Environment Court (NSW)|2017-05-22

Judgment

COMMISSIONER:: This is an appeal against the refusal of local development application number LDA2014/0419 that provides for the demolition of the existing aged care facility, improvements on other lots and construction of a new aged care facility at 8-14 Sherbrooke Road and 78-82 Mons Avenue, West Ryde (the site).
The Amended Statement of Facts and Contentions provided by the council maintains that the application should be refused for the following reasons;
the cl 4.6 written request to vary cl 26 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) in relation to access to facilities is not well founded.
the cl 4.6 written request to vary cl 40 of the SEPP in relation to building height is not well founded.
the site planning and built form are contrary to the zone objectives and cl 33 of the SEPP.
A number of residents provided evidence on the site inspection, and supported the reasons given by the council, plus the following additional matters:
privacy and overlooking.
noise.
additional traffic and parking and consequent safety issues.
inadequate access to car park and loading dock.
construction traffic.
waste collection.
asbestos removal.
emergency egress and assembly area.
Prior to the hearing, the parties agreed to enter into consent orders. A report was prepared by experts Mr Robert Chambers, a town planner, and Mr Alan Cadogan, an urban designer for the applicant, and Mr Jeff Mead, a town planner, and Ms Gabrielle Morrish, an urban designer for the Council. The report addressed those matters raised in the Statement of Facts and Contentions, and concluded that with the further amendment provided by the applicant, there were no matters left in dispute however the residents stated that their concerns remained.

The site

The site is Lots 1 and 4 in DP201757 and Lots 6, 7, and 8 in DP32322. It has a total site area of 6,640 sq m and has frontages to Sherbrooke Road and Mons Avenue. It is essentially rectangular in shape, and includes an access handle, 4 m wide, to Constitution Road. Vehicular access is provided to Sherbrooke Road, and the access handle also provides vehicular access at the rear, where parking is provided for 9 cars, service vehicle facilities, and an uncovered ambulance bay.
Lot 1 is currently occupied by a part 2/part 3 storey building used as a nursing home, known as Opal Fernleigh. The nursing home provides a total of 72 beds. The existing building has a gross floor area of approximately 2,130 sq m. 14 Sherbrooke Road and 78-82 Mons Avenue each contain a single dwelling house.
The street block where the site is located is predominantly residential in nature. The predominant residential development is low-density, with the non-characteristic elements being the existing aged care facility, the residential flat buildings adjoining the site at 4-6 Sherbrooke Road, and two residential flat buildings adjoining the rear at 101 and 103 Constitution Road.

Consent Orders

The Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 99]: 99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.
In summary, the Practice Note requires: evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with; whether any objection has properly been taken into account; and whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing.

Relevant planning controls

The site is within Zone R2 Low-Density Residential under Ryde Local Environmental Plan 2014. The proposed development is permissible with consent in this zone, although the applicant largely relies on the provisions of the SEPP for approval. Clause 4.6 provides the opportunity to vary development standards subject to compliance with the requirements in the clause.
The applicant seeks a variation to the development standard in cl 26 and cl 40 of the SEPP. Clause 26 addresses location and access to facilities. Clause 26(2)(b) requires certain facilities to be located within 400 m of public transport, or of a public transport service, in this case, Meadowbank Railway Station. It was agreed that this service was within 400 m, however, the route did not satisfy the gradients required by cl 26(3).

Clause 4.6 variations Clause 26

The written request under cl 4.6 addresses the justification for the variation to the grades along the route to Meadowbank Railway Station, by stating that all occupants of the facility are high care patients that will not leave the facility. A condition of consent (condition 16) confirms that only high care patients are to occupy the premises. The experts all agree that sufficient justification has been provided to vary the development standard based on the reasons set out in the written request. Having read the written request, I concur with their conclusions. Clause 40
The written request relates to height and specifically cl 40(4) of the SEPP. Clause 40(4) requires a maximum height of 8 metres (cl 40(4)(a)), a 2-storey height that adjoins a site boundary (cl 40(4)(b)), and a 1-storey height for a building in the rear 25% of the site (cl 40(4)(c)). The proposed development does not satisfy these requirements.
The cl 4.6 written request provides justification for the departures from the height development standard, and is supported by all the experts. The basis for this agreement is;
the site is relatively large compared with surrounding properties, therefore it is possible to provide significant site and rear landscape setbacks while still providing the required number of high care beds and bedrooms which are needed,
the parts of the uppermost ceiling which exceed the 8m limit are well removed from the site boundaries and thus have no environmental impacts on neighbouring properties or the streetscape,
the height limit which applies to the site under LEP 2014 is 9.5 m, although building height is defined in that instrument to mean the height between the existing ground level and the highest part of the building;
only very minor elements of the proposal, beings parts of the roof ridges and lift motor rooms exceed the 9.5m height limit and such elements do not give rise to any adverse impact,
the site is currently used for a residential aged care facility and it is in the public interest that it continues to provide accommodation for high care seniors,
the proposal will result in no significant adverse environmental planning impacts as a consequence of non-compliance with the development standards,
the proposal presents as 2-storeys to Mons Avenue and the 3 level element is set back approximately 28 m from the street frontage,
the Sherbrooke Road facade includes deep courtyard insets which includes landscaping to moderate the building form and achieve a more domestic design character,
the side and rear setbacks are much greater than might be expected for a 2-storey building form;
the tall amassing is set well into the site, and
significant trees have been retained.
Having reviewed the cl 4.6 written request and with the benefit of the site inspection, I concur with the conclusions of the experts that the variations to the different height standards can be supported.

Bulk form and site planning

The question of bulk form and site planning was addressed by the experts in their joint report, where they state that the proposed development is acceptable for the following reasons;
the building presents as 2-storeys to Mons Avenue with the level 3 element setback approximately 28 m from the frontage,
the amended plans have redesigned the front of the building to Sherbrooke Road to provide deep courtyard insets to moderate the building form and to achieve a more domestic character to the development,
the deep insets and landscaping in concept with the height reduction towards Mons Avenue and the softer architectural expression in the plans achieve a reasonable response to the character of the streetscape, and
the reduced height at Mons Avenue now means that the proposal is compatible in scale with adjacent development.
Again, with the benefit of the site inspection, and an understanding of the amended plans, I concur with the conclusions of the experts.

Resident concerns

Loss of privacy and overlooking concerns are addressed through the substantial setbacks provided to the adjoining residential properties. Appendix 5 details these setbacks, and when combined with existing landscaping, I am satisfied that any impacts associated with overlooking could not justify the amendment or refusal of the application;
Noise is addressed through a noise impact assessment by Acoustic Logic, (Exhibit C, Tab 6), where the conclusion states, Traffic noise intrusions into the residential units of the proposed Opal Fernleigh aged care development at Sherbrooke Road, West Ryde, have been assessed in this report. The acoustic assessment has revealed that it is both possible and practical to acoustically treat the proposed development such that internal noise levels comply with the relevant noise level criterion. Noise emissions objectives for the site have been determined based on on-site noise measurements and noise emission guidelines as per the EPA's industrial noise policy, and have been presented.
In the absence of any expert evidence to refute these conclusions, I accept that any noise associated with the proposed development would not warrant the amendment or refusal of the application. I also note that condition 64 requires a further acoustic report to be submitted with the construction certificate plans to address methods of minimising the impact from residential noise, including the southern dementia courtyard, condition 65 addresses any noise from the proposed roller shutter, condition 80 addresses construction noise and condition 81 requires the provision of a noise management plan.
Traffic and parking is addressed in two reports by Taylor Thomson Whitting where it concludes that (Exhibit 3 Tab 8): In traffic and transport engineering terms, the proposed development is acceptable and supportable and will have no adverse impact on the road system and parking conditions for the general operational activities of the site.
This was a conclusion also reached by the council engineering staff, and in the absence of expert evidence to refute these conclusions, I accept that the proposal will not generate any unacceptable traffic and parking impacts.
Construction traffic is addressed in condition 31 through the need to provide a demolition traffic management plan and condition 51 that requires a construction management plan.
Waste collection is addressed through condition 29, and requires the provision of a waste management plan.
Asbestos removal is addressed in conditions 26, 27 and 28 and any removal is to be carried out in accordance with the requirements of WorkCover and the EPA.
Emergency access is addressed in the preliminary BCA Assessment Report, by Blackett Maguire and Goldsmith,(Exhibit 3, Tab 17) and the accessibility report by Accessibility Solution NSW Pty Ltd (Exhibit 3, Tab 18) where no issue was raised in either report in relation to the relevant requirements of the BCA or Australian Standards.
I am satisfied that the other matters required to be addressed in the Practice Note have be satisfactorily addressed on notification and the opportunity to address the Court. Consequently, there is no reason why the consent orders should not be made.

Orders

The orders of the Court are;
The appeal is upheld, by consent;
Local development application LDA2014/0419 for the demolition of the existing improvements and the construction of an aged care facility at 8-14 Sherbrooke Road and 78-82 Mons Avenue, West Ryde, is approved subject to the conditions in Annexure A.;
The exhibits are returned with the exception of exhibits 1, A and B.

G Brown Commissioner of the Court 152633.16 (C) (499 KB, pdf)

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Judgment (9 paragraphs)

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