//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2005] NSWLEC 333
Land and Environment Court (NSW)
1986-06-02
Mr P
Original judgment source is linked above.
The applicant shall take all necessary precautions to adequately protect adjoining properties during demolition. This shall include the submission to Council of specific details of the protection to be employed prior to demolition commencing.
The two (2) car spaces, located at ground level and adjacent to the entrance of the nursing home, are to be allocated as an ambulance bay and a loading/unloading bay, with a minimum bay width of 3m.
The entry awning/porch structure is to be set back a minimum of 9m from the Jersey Road front boundary.
The garbage bay walls are not to exceed the existing height of the front fence masonry piers. The proposed pitched tile roof shall be deleted. 8. All service loading and unloading deliveries are to take place within the property. 9. A detailed landscape plan prepared in accordance with Council's Landscaping Code, by an Accredited Certifier, qualified landscape architect or practising landscape consultant and submitted to Council for consideration. The plan shall indicate all existing trees on the site and those to be removed. The approved landscape plan or evidence of its approval is to be submitted to the Principal Certifying Authority, prior to the issuing of a Construction Certificate. 10. The landscaping of the site being carried out in accordance with the approved landscape plan prior to the issuing of an Occupation Certificate. The landscaping is to be maintained for a minimum period of two (2) years from the date of the Occupation Certificate. 11. Any mature trees required to be removed from the site are to be replaced with the equivalent number of super advanced trees of a species suitable to Council prior to the issuing of an Occupation Certificate. 12. Landscaping and planter boxes are to have indigenous/mature plants to reduce water usage. 13. All works are to be located within the site boundaries. 14. The kitchen and basement exhaust systems are to be an integral part of the building and not located at the site boundary. Exhaust ducts and mechanical equipment are not to be visible from Jersey Road. 15. Installation of water saving appliances and fittings - dual flushing toilets, shower heads and taps. 16. Installation of energy saving appliances for the hot water systems (solar or heat pump systems) refrigeration, heating and cooling systems, lighting, cooking, dishwasher, clothes washing and drying. 17. The roof/ceiling is to be insulated to reduce energy usage. 18. Install skylights for natural lighting to the toilets, bathrooms, stairway and kitchen, to reduce electrical energy usage. 19. Provision of a stormwater harvesting and recycling system for landscape watering and compliance with Basix requirements. The system is to be identified in the Construction Certificate plans. 20. A Section 73 Compliance Certificate under the Sydney Water Act, 1994 must be obtained. Application must be made through an authorized Sydney Water Servicing Coordinator (for details see e-Developer at www.sydneywater.com.au or telephone 13-20-92). The Section 73 Certificate must be submitted to the Principal Certifying Authority (PCA) prior to the release of any linen plan of subdivision and/or Occupation Certificate of the development.
b. Name, address and contact phone number of the building owner. 3. An insectocutor or similar non-chemical device is to be installed for fly and insect control. 4. The fitout of the kitchen is to be in accordance with Australian Standard AS 4674-2004 "Design, construction and fit out of food premises" the Food Safety Standards. 5. A change-room with adequate clothes space facilities for employees is to be provided to the satisfaction of the Council. 6. Drop-in panel removable ceilings are not permitted. Ceilings are to be constructed of a rigid smooth faced, non absorbent material and could include plasterboard and fibrous cement or other approved material. They are to be painted with a washable gloss paint of a light colour. The intersection of the walls and ceiling is to be tight jointed, sealed and dustproof. 7. Floors are to be constructed of materials which are impervious, non-slip, non-abrasive, resistant to lactic acid and fatty acids, cement render over concrete, quarry tiles, magnesite or other approved material. The floor is to be finished to a smooth even surface, graded and drained. The intersections of the floors with walls and exposed plinths are to be coved. 8. Floor wastes drained to the sewer are to be installed in the food preparation and the wet areas. 9. Walls are to be of solid construction, finished with glazed tiles, stainless steel or laminated plastic adhered directly to the wall to a height of 2 metres above floor level. Walls where not tiled are to be cement rendered, set with plaster and steel trowelled to a smooth even surface, painted with a washable gloss paint of a light colour. 10. Benches, draining boards, table-tops etc, are to be of rigid, smooth-faced non-absorbent material, free of cracks, crevices or cavities - such as stainless steel or other approved material. 11. All equipment, machinery, shelving etc, shall be fixed on solid concrete plinths or alternatively, mounted on round metal legs at least 200mm off the floor. Hollow plinths are not permitted. 12. All shelving throughout the premises is to comply with the following:- a. Shelving shall be of glass, metal, plastic, coated timber or other approved materials; b. The surface of shelving, including edges, is to be smooth, non-absorbent and free of cracks, crevices or cavities; and c. All shelving is to be of solid construction. 13. Provide a wash hand basin in a central location within the food preparation area. The basin must be supplied with hot and cold water provided through a mixing tap, together with a sufficient supply of liquid soap and single use (e.g. paper) towels or another approved hand drying device.
a. Cold potentially hazardous foods must be stored and displayed at a temperature of less than 50 Celcius. b. Hot potentially hazardous foods must be stored at a temperature of more than 600 Celcius.
a. Demolition and excavation phase b. On site waste management during construction phase c. Ongoing waste management when facility is in operation
ENGINEERING 1. All activities and works external to the site, or that affect public roads, are to be carried out in accordance with Council's Code for Activities Affecting Roads.
b. Council will only carry out two inspections of the Council's footpath, kerb and gutter, drainage system and roadway, prior to works commencing and at the completion of all work covered by this consent. Council is aware that damage may be caused by individual contractors that culminates in the damage inspected at Council's final inspection. The applicant is responsible for attributing any part of the damage to their individual contractors. Council will not refund any part of a damage deposit until the completion of the work covered by this consent.
b. The cost of any necessary adjustments to public utility services is not included, and shall be paid by the applicant to the relevant authority prior to Council commencing the work. c. The driveway shall be 1m clear of any pits, lintels, poles and 2m clear of trees in the road reserve.
d. All redundant vehicular crossings shall be removed and replaced with kerb and gutter and footpath at no cost to Council. 7. Internal driveway levels shall be designed and constructed to conform with existing footpath and road profiles such that vehicles are not damaged while accessing the property. Council footpath and road profiles will not be altered for this purpose. 8. Deleted. 9. The applicant is to have prepared a longitudinal section of the proposed vehicular ramp access, drawn at 1:25 natural scale. a. The longitudinal section shall be prepared by a competent practicing civil engineer in accordance with AS 2890.1.
b. The design is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.
b. The erosion and sediment control plan is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate or commencement of demolition.
b. The drainage study is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate. 14. Deleted. 15. A detailed drainage design shall be submitted to the Principal Certifying Authority. a. The design and calculations shall indicate the details of the proposed method of stormwater disposal and shall be prepared by a competent practicing hydraulic/civil engineer in accordance with Council's Stormwater Management Code.
b. Allowance shall be made for surface runoff from adjacent properties, and to retain existing surface flow path systems through the site. Any redirection or treatment of these flows shall not adversely affect any other property.
c. Overflow paths shall be provided to allow for flows in excess of the capacity of the pipe/drainage system draining the site, as well as from any on-site stormwater detention storage.
d. The design is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.
b. plans showing proposed and existing floor, ground and pavement levels to AHD,
c. details of pipelines/channels showing calculated flows, velocity, size, materials, grade, invert and surface levels,
d. details and dimensions of pits and drainage structures,
f. details of any services near to or affected by any proposed drainage line,
g. any calculations necessary to demonstrate the functioning of any proposed drainage facility is in accordance with Council's requirements.
h. The depth and location of any existing stormwater pipeline and/or channel being connected to shall be confirmed by the applicant on site. Certification of such is to be provided to Council prior to the release of the construction certificate. The details and calculations are to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate. 17. On-site stormwater detention storage shall be provided in conjunction with the stormwater disposal system. a. This storage shall be designed by a competent practicing hydraulic/civil engineer in accordance with Council's Stormwater Management Code and submitted to the Principal Certifying Authority.
b. The maximum permissible discharge from the site via a pump out system for all design storm events is limited to 20 litres/second.
c. The design is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate. 18. The Council stormwater works consist of a connection to the kerb in Jersey Road. The connection shall be at 45 degrees to the kerb alignment. 19. Deleted.
SCHEDULE OF CONSTRUCTION STAGES REQUIRING INSPECTION a. Following placement of pipe bedding material. Confirm trench/pipe location, adequacy of depth of cover, bedding material and depth. b. Following joining of pipes and connection to Council's stormwater system.
c. For on-site detention systems:- (i) Following set out of detention tank/area to confirm area and volume of storage. (ii) Following placement of weep-holes, orifice and/or weir flow control, outlet screen and overflow provision. d. Following backfilling. Confirm adequacy of backfilling material and compaction.
b. The Principal Certifying Authority is to be provided with a Compliance Certificate from a competent practicing hydraulic/civil engineer. The Compliance Certificate shall state that all stormwater drainage and related work has been constructed in accordance with the approved plans and consent conditions as shown on the work-as-executed plans, prior to the issuing of an Occupation Certificate.
c. The Council shall have the right to enter upon the land referred to above, at all reasonable times to inspect, construct, install, clean repair and maintain in good working order the facilities in or upon the said land; and recover the costs of any such works from the proprietor.
d. The registered proprietor shall indemnify the Council and any adjoining landowners against damage to their land arising from failure of the pump facility or stormwater system. The applicant shall bear all costs associated with the preparation of the 88E Instrument. The wording of the Instrument shall be submitted to, and approved by Council prior to lodgement at the Land Titles Office. Evidence that the Instrument has been registered at the Land Titles Office shall be submitted to Council, prior to issuing of an Occupational Certificate. 25. Deleted. 26. The pump system is only permitted for the drainage of the basement areas where the finished slab is below the ground level. The following conditions are to be satisfied:- a. A pump and rising main design shall be submitted to the Principal Certifying Authority and shall satisfy the following conditions:- (i) The holding tank for the pump shall be capable of storing runoff from a one hour, 1 in 100 year ARI storm event. (ii) The pump system shall consist of two (2) pumps, connected in parallel, with each pump being capable of emptying the holding tank at a rate equal to the lower of the allowable on site detention discharge rate, or the rate of inflow for the one hour duration storm. (iii) An overflow, flashing light and audible alarm are to be provided, to warn of pump failure. (iv) Full details of the holding tank, pump type, discharge rate and the delivery line size are to be documented. (v) Any drainage disposal to the street gutter, from a pump system must have a stilling sump provided at the property line, and connected to the street gutter by a suitable gravity line. (vi) The capacity of the stilling sump and outlet pump shall be determined and verified by calculations which are to be documented. b. Pumping system details shall be submitted to Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.
c. The applicant shall submit written evidence to the Principal Certifying Authority that a contract has been let for the regular maintenance of the pump system for a minimum period of 12 months. Information to be submitted to the Principal Certifying Authority prior to issuing of an Occupation Certificate.
Proposed streetscape upgrade works are limited to undergrounding of power and Optus crossing the road and undergrounding of connections as described in the Council's sketch plan J/13.
Associated Roadway Costs: That the applicant shall accept responsibility for all costs associated with the design; construction; alteration; adjustment; relocation or restoration of any works on the public way including: kerb; gutter; pavement; footpath paving; landscaping; street furniture; signage; drainage and public utility services. The reinstatement of any damaged kerb and gutters are to be in materials similar to those existing. Such works are to be carried out by Council's workforce unless otherwise agreed in writing by the Director Technical Services and Operations;
Security Bond or Bank Guarantee: All survey, design and documentation, contract administration, supervision, obtaining of approvals, and construction costs for works identified in the plan associated with the upgrading and repairing of public pavements and surrounding areas, services, re-landscaping, sign posting, pedestrian fencing, improved street lighting and banner poles, stormwater services, adjustment to public utility services, undergrounding of all overhead public utility services, street tree planting, irrigation, and all other works associated with the subject design, are to be borne by the applicant and all works are to Council's Technical Services and Operations Department's satisfaction. Detail plans of the works are to be submitted to Council's Engineering Department for approval prior to the issue of a Construction Certificate .
In respect of Fees/Conditions (4) and (8) the funds paid or guaranteed may be used or called upon at Council's discretion in part or in full for completing the public works indicated as required in connection with this consent or for remedying any defects in such public works that arise within six (6) months of practical completion. If there are remaining funds at the end of the defects period, the unused funds or original guarantee will be returned to the applicant. During the 6 month defects period, the applicant shall maintain the works in a safe, clean and attractive condition, and promptly repair damage due to faulty work or materials, wear and tear including any such works conducted by a service company (such costs of which may be recoverable by the applicant from the utility company by negotiation).
The applicant shall enter into an agreement satisfactory to the Council to cover any variation to the costs estimated in relation to Fees/Conditions (4) and (8) inclusive that may reasonably be incurred by Council in addition to the amount of the bond or bank guarantee, including any costs incurred in the relocation of any services of a utility organization. The executed agreement shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.
Public Domain Plan: The following requirements apply:- Three (3) copies of a detailed Public Domain Plan shall be prepared by an architect, urban designer or landscape architect and shall be approved by Council (to be lodged with the Director Technical Services and Operations) prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. It is recommended that draft plans should be submitted for comment prior to formal submission for approval. The Public Domain Plan shall be as follows:- a. Drawn at 1:100 scale; 1:200 will be acceptable for larger sites of over 200m street frontage. b. Show the entire layout and type of paving including kerb and gutter. c. Nominate the location, type and material of all existing and proposed public pavement elements including trees, paving, kerbs and gutters, pedestrian ramps, vehicle crossings, street furniture, (including maps, notice boards, benches, bollards, bins, kiosks, APT's, and phone booths), utility poles, parking meters, pedestrian and traffic signals, service pits, stormwater pits and signage (including street nameplates, historical, parking and traffic). d. Include a longitudinal section of the pavement showing existing and proposed levels at 10 metre intervals at the building alignment, the kerb and the gutter on a common datum line. This longitudinal section is to be drawn at 1:100 horizontal scale and 1:10 (exaggerated) vertical scale. For larger sites of over 200m street frontage 1:200 horizontal scale and 1:20 (exaggerated) vertical scale is acceptable. This section is to ensure that any significant longitudinal gradient change, such as flattening for vehicle entries, occurs within the building line and not at the public pavement. e. Include 1:50 scale cross sections through pedestrian ramps and vehicle crossings. f. Include specifications of the proposed works.
The Public Domain Plan shall incorporate the standard specifications and details of the relevant Burwood Council policies and standards, adapted to suit the specific site requirements as advised by the Director Technical Services and Operations and may include:- a. Adjustment to paving grades to provide a maximum crossfall of 2.5% from building line to top of kerb. b. Repaving in accordance with Council policies and specifications. c. The relocation or provision of new vehicle crossovers and pedestrian ramps including the consequent relocation of existing service pits, traffic signals, kerb corner radii, signs, street furniture and street trees. d. The retention of existing street trees and the provision of new street trees to comply with the Council Street Tree Strategy and Landscape Masterplan. e. The repair and where required the resetting of all stone kerbing to a uniform grade. Where adjustments require substantial kerb and gutter demolition, the carriageway shall be reconstructed or resurfaced (as required) to the centre line of the carriageway or to sufficient distance from the kerb to achieve a uniform transition into the existing pavement profile. f. The retention and repair of any existing pavement lights. g. The retention and repair of any existing serviceable stone gutters to achieve a uniform kerb and gutter longitudinal grading free of vertical displacement of greater than 5mm between adjacent units. h. The realignment and level adjustment of service pit lids to correspond to new kerb ramps and paving, and where required, provision of new infill type service pit lids. i. Protection or replacement by the developer of all City assets to be retained as part of Public Domain works and recovery and return of any City assets where such removal has been approved. 34. Random checks by Council officers may be made throughout the construction process to advise the contractor of non-complying elements. However, no parts of the work are to be considered approved until receipt of the Burwood Council Certificate of Completion. Burwood Council will require all non-complying parts to be rectified prior to issue of this consent.
· That a detailed landscape plan and specification for the site in accordance with the approved DA landscape plan shall be prepared by a qualified Landscape Architect, be submitted to the Certifying Authority with the application for a Construction Certificate. The Certifying Authority shall then submit a copy of the approved Landscape Plan and Specification to Council's Director Technical Services and Operations prior to the issue of a Construction Certificate . · The Landscape Plan shall nominate: a. Materials and Finishes -Plans, sections and schedules to indicate type, extent, layout, setout, installation requirements of all hardworks and surface finishes (i.e. lighting, walls, paving, furniture, fixtures, fences, disabled access) including the relationship to adjoining finishes in accordance with the approved DA landscape plan. Garden walls and edging are to be masonry or approved materials that compliment the architecture and character of the development.
b. Levels and Drainage- Plans, details and or sections indicating existing and proposed nominal levels, stairs and ramps for disabled access, fall arrows, inlet pits, sub surface drainage, swales or detention points.
c. Planting Plan- Plan and schedules indicating layout, location, species, size at installation, staking requirements and numbers of each species. Details of ground preparation, soil mix and staking/ tree guards. Mulch to be hardwood chip at 75mm depth. Planting layout and massing shall be in accordance with the approved DA landscape plan. Minimum requirements for planting to be as follows: Material Mature Height Min. Spacing Min. Size Trees 75L (min. 2.0m tall) Shrubs >3.0m 1/4m2 10L Shrubs 1.0-3.0m 1/2m2 5L or 200mm pot Groundcovers <1.0m 6/ per m2 150mm pot · Car Park Landscaping: That advanced species trees are to be planted throughout the carparking area(s) at a minimum rate 1 tree per 10 car parking spaces for double rows of parking and 1 tree per 5 car spaces for single rows of parking and around the carpark in accordance with Council's Landscaping Code. Understorey planting is to accompany the tree planting. The landscaping details are to be submitted to and approved by Council prior to the issuing of an Occupation Certificate. 37. Public Authority Matters, Underground Telecommunications & Undergrounding of Services: · That the applicant shall submit to Council a letter from a licensed telecommunications carrier confirming that satisfactory arrangements have been made for the provision of underground telephone services to the site / building(s), prior to the release of the Subdivision Certificate / Occupation Certificate; · Deleted; · Electricity and telecommunication cabling shall be placed underground at the applicant's expense from the development site to the main power lines and telecommunication cables in accordance with the specifications of Energy Australia and telecommunications suppliers. The following work must be carried out: · Where the property is located on the opposite side of the street to the main power lines and telecommunication cables, the house services are to be placed underground from the development site to the nearest location on the opposite side of the street for connection to the existing mains supply as directed by Energy Australia and the telecommunications carrier. The method of construction across the road carriageway shall be by directional boring beneath the road pavement; or, · Where the property is located on the same side of the street as the main overhead power lines and telecommunication cables, all services are to be placed underground across the full width of the frontage of the site. Any overhead powerlines and telecommunication cables that cross the road from the development site must also be placed underground and the cabling installed and distributed to properties in accordance with the Supplier's and Carrier's requirements. 38. Prior to the issue of a Construction Certificate, the applicant must contact: (a) The Engineer Planning and Supply Negotiations (West) Energy Australia on 131 535, to obtain quotation to underground power supply lines and where appropriate a quotation to underground the main overhead power supply lines adjacent to the frontage of the subject property.
(b) The Telecommunications carrier on 1100 advising that undergrounding of the telecommunication cabling is required. 39. If required, an easement (within the property) shall be created in favour of electrical and telecommunications suppliers: (a) For the provision of underground services and above ground pillar boxes for access to their equipment;
(b) The easement is to be 3m wide abutting the property boundary at the point of entry and 1.5m within the property;
(c) Where the easement is to be enclosed, minimum headroom of 2m is required above the floor level;
(d) The required easement shall be created and registered prior to the issue of an Occupation Certificate or use of the building. 40. The wording of the easement shall be approved by Energy Australia and the Telecommunications Carrier where applicable prior to lodgement at the Land and Property Information (formerly Land Titles Office). Proof of lodgement is to be provided to Council prior to the issue of a Construction Certificate . Proof of registration of the easement for services shall be provided to Council prior to the issue of an Occupation Certificate or use of the building. 41. If required, street lighting must comply to the Australian Standard for pedestrian area lighting, 1158.3.1 'Performance and installation design requirements' and be consistent with the requirements of Energy Australia. 42. Any disturbance to footpaths as a result of the undergrounding of services shall be restored at no cost to Council. A Works Permit from Council's Customer Service Centre must be obtained prior to undertaking the work. 43. A plan indicating the depth and location of all services (i.e. gas, water sewer, electricity, telecommunication, traffic lights, etc.) within the area affected by the development shall be submitted to Council prior to the issue of a Construction Certificate.
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.
Rasko Holdings Limited
Burwood Council
CITATION : Rasko Holdings Limited v Burwood Council [2005] NSWLEC 333
CASES CITED: Arminella Pty Limited v Ryde City Council [1999] NSWLEC 237 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) - Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46
46 I have had regard also to the note attached to cl 79 of the SEPP (Seniors Living) quoted above in para 43. Considering the construction of s 79C(3) of the Act, cl 79(c) of SEPP (Seniors Living) and the accompanying note, I am of the opinion that the standard is a non-discretionary development standard and some flexibility in its application is permitted without considering an objection under SEPP1. 47 The proposed landscaped area, as calculated by Mr Sue for the council, would be 590m2. Under the provisions of the SEPP (Seniors Living), the required landscaped area would be 1,600m2 based on a residential care facility with sixty-four (64) beds @ 25m2 per residential care bed. As the number of beds in the proposal has been reduced to sixty-three (63) the shortfall in area of landscaped area would be of the order of 1,010m2. 48 Mr Sue, pointed to the fact that the 590m2 of landscaped area provided for the use of occupants, visitors and staff, would not meet the minimum standard of 25m2 of landscaped area per residential care facility bed. He stated that the applicant has proposed only 9.2m2 of landscaped area per residential care facility bed and also it is proposed to build upon the existing eastern landscaped area, of about 1,000m2 that was previously set-aside as a recreational area. 49 Mr Sue also was of the opinion that the proposed forecourt, combined with landscaped area located on the southern side of the existing building, the central ground floor northern courtyard measuring 5.7m wide x 15.5m in length, the first floor terraces and other pockets of open space would be inadequate to cater for the needs of the residents. 50 Mr Shiels stated [Note: Exhibit D p 17: Indeed, my experience with aged and infirm facilities is that very little outdoor space is provided. The emphasis in these facilities is more towards improving the internal spaces and providing small outdoor functional spaces. Many of the residents in this establishment are bedridden and they are transported from their permanent bed to a transportable bed when and if they are taken outside. Also, there is a high level of dementia patients in this establishment who require a reasonable level of security. Residents using the open areas do so in a passive way. They will sometimes sit in groups in the presence of a carer. Also, the SEPP (Seniors Living) does not contain any performance criteria or objectives for landscaped area. It is difficult therefore to ascertain why the SEPP mentions this amount of landscaped area. The proposed terrace areas provided on the first floor are not …landscaped areas within the definition under clause 3 of the SEPP. As indicated, these terrace areas provide 94.28 square metres of functional open space in addition to the 590 square metres of landscaped area. In summary, in my opinion the landscaped area is not a development standard and has little relevance to the proposal. 51 Ms Chadwick was also of the opinion that, "[n]ursing home residents in general do not utilise outdoor areas for exercise as this type of activity is held within the facility for a small number of able people." [Note: Exhibit F, p 2] 52 I accept the evidence of Mr Shiels and Ms Chadwick that the requirement for 25m2 of landscaped area per residential care bed would be excessive in the particular circumstances of this case. For the type of residential nursing home care such as that provided by 'Goondee' presently and as proposed, 9.2m2 per bed of landscaped area would be satisfactory. I would not refuse consent for reason of non-compliance with the 25m2 standard. If I am wrong in this interpretation of a non-discretionary development standard, I have considered the applicant's SEPP1 objection in this respect. 53 Mr Sue considered the extent of the shortfall in the landscaped area would be excessive and the SEPP No 1 objection for a variation to the development standards could not be supported. 54 Mr Leggat identified the underlying objectives of the standard as including the provision of adequate amenity for residents and their guests, the control of bulk and maintenance of setbacks. He said, as the provision of 9m2 per bed fails to meet the objectives of the standard compliance with the standard, compliance with the standard cannot be said to be unreasonable or unnecessary. 55 The applicant lodged an objection, under State Environmental Planning Policy No 1 - Development Standards , (SEPP No 1), and requested flexibility in the application of the standard on the following grounds: · The proposed landscaping adequately screens adjoining properties. · There is ample passive landscaping for the occupants. · The Jersey Road forecourt central courtyard and first floor terraces are conveniently located for the occupants to use. · There is adequate landscaping to soften the appearance of the building. · The provision is consistent with the SEPP (Seniors Living) 2004 objectives. · The landscaping reduces the bulk and scale of the development. 56 I have considered the SEPP1 objection to the 25m2 of landscaped area per residential care bed as a minimum standard that cannot be used to refuse development consent in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, paras 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.