COMMISSIONER: This is an appeal against Wollongong City Council's (Council) notice of determination dated 24 February 2022 to refuse to grant development consent to The Uniting Church in Australia Property Trust (Uniting) development application number DA-2021/911 (DA) for the change of use from 'Respite Day Care Centre' to senior housing to provide temporary respite care on a permanent basis and associated internal alterations at 58 Graham Street Unanderra being the whole of the land in Folio Identifier 131/32220 (the Site).
1. The proceedings have been commenced pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
3. The statutory power or function to be exercised in determining the proceedings is s 4.16(1) of the EPA Act and s 34(3)(a) and (b) of the LEC Act.
The immediate locality is characterised by low and medium density residential housing to the east and south of the Site. Seniors' housing in the form of independent living units and a residential aged care facility are located to the north-west and west of the Site.
Under the provisions of the Wollongong Local Environmental Plan 2009 (WLEP 2009) the land surrounding the Site, and the Site, is zoned R2 Low Density Residential. The objectives of the R2 Low Density Residential zone 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
The Land Use Table for the R2 Low Density Residential zone in WLEP 2009 identifies seniors housing under item 3 as 'permitted with consent'. Further, cl 2.7 of WLEP 2009 identifies that the demolition of a building or work may be carried out only with development consent.
The aims of WLEP 2009 are set out in cl 1.2:
(1) This Plan aims to make local environmental planning provisions for land in Wollongong in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.
(2) The particular aims of this Plan are as follows - ……
(b) to encourage economic and business development to increase employment opportunities,
(c) to encourage a range of housing choices consistent with the capacity of the land,
(d) to improve the quality of life and the social well-being and amenity of residents, business operators, workers and visitors,
……
(g) to ensure that development is consistent with the constraints of the land and can be appropriately serviced by infrastructure,
Clause 1.4 of WLEP 2009 refers to the Dictionary which contains the definition of words and expressions in WLEP 2009 - relevantly as follows:
seniors housing means a building or place that is -
(a) a residential care facility, or
(b) a hostel within the meaning of State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5, or
(c) a group of independent living units, or
(d) a combination of any of the buildings or places referred to in paragraphs(a)-(c),and that is, or is intended to be, used permanently for -
(e) seniors or people who have a disability, or
(f) people who live in the same household with seniors or people who have a disability, or
(g) staff employed to assist in the administration of the building or place or in the provision of services to persons living in the building or place,
but does not include a hospital.
Note -
Seniors housing is a type of residential accommodation - see the definition of that term in this Dictionary.
residential care facility means accommodation for seniors or people with a disability that includes -
(a) meals and cleaning services, and
(b) personal care or nursing care, or both, and
(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,
but does not include a dwelling, hostel, hospital or psychiatric facility.
Note -
Residential care facilities are a type of seniors housing - see the definition of that term in this Dictionary.
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 6 February 2023. I presided over the conciliation conference. The parties filed a Section 34 Agreement on 8 February 2023.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, which is reflected in the Section 34 Agreement dated 8 February 2023. This decision involved the court noting that Council, as the relevant consent authority, agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to amend the DA by:
1. An Amended Flood Emergency Response Plan dated 20 December 2023;
2. An Amended Home and Community Care: Overnight and Day Respite and Wellness Cottage Plan of Management dated February 2023 by Uniting.
3. Consolidation of the Site with Lot 1213 in Deposited Plan 1136137 to enable legal access to the rear parking on the Site from Dominish Drive.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16(1) of the EPA Act to grant consent to the DA subject to conditions in Annexure A. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as set out below:
1. In accordance with s 4.12 of the EPA Act and cl 23 of the EPA Regulation the Applicant gave owner's consent to the lodgement of the DA with Council and filing the appeal in the Court (Class 1 application, tab 10).
2. The DA was lodged with Council on 16 August 2021 and, as such, pursuant to Sch 6 Pt 1 cl 3 of the Environmental Planning and Assessment Regulation 2021, the EPA Regulation continues to apply to this matter.
3. There was 1 objector to the DA, and she gave oral evidence on 6 February 2023 together with lodging a written objection. Her principal objection relates to the carparking on the public street as the streets are narrow, and several accidents have occurred on the bend in the road near her home. Council also raised a contention that the Site did not have legal access to the car parking accessed from Dominish Drive. The parties have addressed this issue by:
1. Requiring the Site to be consolidated with Lot 1213 in Deposited Plan 1136137 (which lot is in the same ownership as the Site) to enable access to 4 carparking spaces at the rear of the Site. Those 4 spaces meet the requirement in the Wollongong Development Control Plan 2009 (WDCP 2009), Chapter E3 Car Parking, Access, Servicing/loading Facilities and Delivery Management; Schedule 1 Carparking, Bicycle, Motorcycle, Delivery Vehicle Parking Requirements:
1. 1 space per ten residents - in the DA there is provision for 7 residents and 1 carparking space is provided;
2. 1 space is provided for the Ambulance
3. 1 space per 2 employees - in the DA there are 3 employees and 2 carparking spaces are provided.
4. In addition to the carparking spaces which are accessed from Dominish Drive, the drop/off pick up is accessed from Graham Street via a through drive which will be used to deliver/collection of residents, and from time to time by the ambulance service.
1. The parties are satisfied that the above actions meet the requirements of legal vehicular access from Dominish Drive and the requirements for car parking pursuant to Chapter E3 of WDCP 2009.
1. The objector also raised the issue of light spill from the lighting along the southern boundary of the Site. The Applicant has addressed this issue in the Uniting Home and Community Care: Overnight and Day Respite and Wellness Cottage Plan of Management dated February 2023 p10:
"Lighting: Any external lighting along the southern boundary of the site (in the area highlighted yellow below) is to be a 'warmer colour temperature' (that being, between 2500K-3000K), and is to be sensor only between the hours of 10pm and 7am."
1. Pursuant to s 4.15(a)(i) of the EPA the Court is required to take into consideration the provisions of any environmental planning instrument. The relevant environmental planning instruments are as follows:
1. Chapter 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The parties have considered the possibility of contamination of the Site, and as the Site is not known to be contaminated, and its historic use does not suggest any risk of contamination, the parties have concluded that the Site is not contaminated.
2. Part of the internal building on the Site is to be demolished and rebuilt. As the DA includes building work the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies. Assuming the alterations to the building on the Site comprises a 'BASIX affected building' (as defined in the cl 3 of the EPA Regulation: 'BASIX affected building' means any building that contains one or more dwellings, but does not include a hotel or motel"). The works involve alterations with an estimated construction of $47,956.00 (Class 1 application, tab 8) which is below the threshold set out in cl 3(c) 'BASIX affected development' of the EPA Regulation.
3. The State Environmental Planning Policy (Housing) 2021 (Housing SEPP) does not apply, and nor does the former policy - State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors Housing SEPP). Consent for the current use of the Site as a 'Day Care Centre for Aged Care Citizens' was granted by Council under D/00/45 on 25 September 2002 (Class 1 application, tab 4 par 5.2). The DA proposes development for the purposes of Seniors Housing under WLEP 2009 in which the development is permitted with consent in the Site's R2 Low Density Residential zoning. It is relevant to note that the only reason the development is regarded as seniors housing is to address the restriction on overnight accommodation presented by the definition of 'respite day care facility' when in fact those activities form the intended purpose of the facility. Clause 2(2)(a) of the Seniors Housing SEPP outlines that the aims of the SEPP will be achieved by setting aside local planning controls that would prevent the development of housing for seniors or people with a disability. That provision is not required in this DA as the proposed use is permissible within the R2 Low Density Residential zone, and the DA was lodged relying on the provisions of WLEP 2009. The Housing SEPP which was gazetted on 26 November 2021 does not apply because of its savings and transitional provisions. The Seniors Housing SEPP does not apply because the Applicant applied to change the use of the premises on the Site pursuant to the provisions of WLEP 2009, and the application of Seniors Housing SEPP is not necessary to achieve that outcome. (Applying Principal Healthcare Finance Pty Limited v Blacktown City Council [2021] NSWLEC 1247 by Commissioner O'Neill and Mete v Warringah Council (2004) 133 LGERA 420; [2004] NSWLEC 273, a decision by Talbot J.)
4. Portions of the site are mapped as containing bushfire prone land, Category 1 Vegetation Buffer. For the purposes of the Rural Fires Act 1997:
1. Section 100B applies as the DA involves a proposed use which is identified as a "Special Fire Protection Purpose', being 'seniors living'.
2. In accordance with s 100B(3) the Applicant is required to obtain a bush fire safety authority.
3. On 22 October 2021 the New South Wales Rural Fire Service issued General Terms of Approval pursuant to Div 4.8 of the EPA Act and s 100B of the Rural Fires Act 1977.
4. The General Terms of Approval have been incorporated into the agreed Conditions of Consent in Annexure A (p 2: par A: NSW Rural Fire Service - Rural Fires Act 1997).
1. WLEP 2009 - the jurisdictional pre-requisites are set out below:
1. The use of the Site for 'seniors housing' is permitted in the R2 Low Density Residential zone.
2. The proposed development is consistent with the objectives of the R2 Low Density Residential zone.
3. Clause 2.7 provides that the demolition of a building work may be carried out only with development consent.
4. Council considers cl 5.21 applies to the Site. Flood planning seeks to minimise the flood risk to life and property associated with the use of the land, to allow development on land that is compatible with the flood function and behaviour on the land, to avoid adverse or cumulative impacts on flood behaviour and the environment, and to enable the safe occupation and efficient evacuation of people in the event of a flood. The Applicant filed an Amended Flood Emergency Response Plan (FERP) dated 20 December 2022. The FERP provided additional information so that it forms a robust Flood Emergency Response Plan, and which demonstrates an improvement of the existing flood risk for the current development on the Site. Having considered the following matters under cl 5.21(3)(c) the parties agree that the FERP satisfies cl 5.21 because the development incorporates measures to minimise the risk of life and ensures the safe evacuation of people in the event of a flood. The parties further note that there is no change to the envelope of the building on the Site.
1. The parties have considered the public interest as follows:
1. Pursuant to s 4.15(1)(d) and (e) of the EPA Act, the consent authority is required to take into consideration any submissions made in accordance with the EPA Act or EPA Regulation.
2. The DA was notified in accordance with Council's Community Participation Plan 2019 and s 4.18 of the EPA Act between 23 August 2022 and 7 September 2022. One submission was received and was considered by Council.
1. The parties consider that the matters raised by the objector have been addressed in the conditions of consent in Annexure A which includes the Amended Home and Community Care: Overnight and Day Respite and Wellness Cottage Plan of Management dated February 2023 by Uniting.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
The Court notes that Council, as the relevant consent authority has agreed, pursuant to cl 55(1) of the EPA Regulation, to amend the DA by incorporating the Amended Flood Emergency Response Plan dated 20 December 2022 by Stellen Civil Engineering ABN 61 149 095 189 which forms part of the conditions of consent in Annexure A.
The Court orders:
1. The appeal is upheld.
2. Development consent is granted to Development Application No. DA-2021/911 for the change in use from Respite Day Care Centre to Seniors Housing to provide temporary respite care on a permanent basis and associated internal alterations at 58 Graham Street, Unanderra, being the whole of the land in Lot 131 Deposited Plan 32220, subject to conditions of consent in Annexure A.
[2]
Acting Commissioner of the Court
Annexure A (Amended)
[3]
Amendments
22 February 2023 - Pursuant to UCPR r 36.17, the Court amends Annexure A, referred to in Order 2 of the judgment, to include Condition 29 and the Uniting Home and Community Care Overnight and Day Respite and Wellness Cottage Plan of Management as an approved document.
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: 22 February 2023
Parties
Applicant/Plaintiff:
The Uniting Church in Australia Property Trust (NSW)