Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1008

Land and Environment Court of New South Wales

CITATION : Nanevski Pty Limited v Rockdale City Council [2010] NSWLEC 1008

APPLICANT Nanevski Pty Limited PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 10704 of 2009

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of a residential care facility - height - number of storeys - character/streetscape - setbacks - bulk/scale - amenity impacts

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Rockdale Local Environmental Plan 2000

CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46

DATES OF HEARING: 10,11 December 2009

DATE OF JUDGMENT: 15 January 2010

APPLICANT Mr P Tomasetti SC SOLICITORS D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

15 January 2010

10704 of 2009 Nanevski Pty Limited v Rockdale City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (the council) of Development Application No. 2008/427 for the demolition of an existing dwelling and the construction of a residential care facility at 45 Lawson Street, Sans Souci (the site). 2 Having considered the expert planning evidence, resident evidence and with the benefit of a site view of the site and surrounding areas, I have found that the proposed development is unacceptable for a number of reasons which are set out later in the judgement. While the applicant suggested that it was open to any amendments thought appropriate by the Court, the matters found to be unacceptable ranged from minor matters that could be addressed by way of conditions to more significant matters that required a significant redesign of the proposal and potentially consequential changes that would need further reassessment. The latter matters make it inappropriate for the Court to consider an approval subject to further amendments being made to the design. The site 3 The site is Lot 58, Sec 2, DP 5031. It is an irregular fan-shaped lot having a frontage to Lawson Street of 19.25 m, a rear boundary of around 34 m, a northern boundary of 53.39 m, a southern boundary of 57.02 m giving a total area of 1401.7 sq m. There is a slight fall towards the street of approximately 1.2 m with the area closer to Lawson Street relatively flat. 4 The site is occupied by a single storey detached dwelling and detached garage with some mature vegetation located towards the rear of the site. 5 The surrounding area is characterised by a range of residential development. The proposal 6 The proposal provides for the demolition of the existing dwelling and associated structures and the construction of a residential care facility for aged persons with a capacity of 54 beds. The rooms are distributed over two levels with each level providing 27 beds. Each level is also provided with amenities such as communal bath, lounge, dining area and staff and administration facilities. A basement area contains car parking, unloading facilities, kitchen, laundry and some staff amenities. The proposal also provides for a rooftop outdoor terrace area. A lift and stairs connect all levels of the building. Relevant planning requirements 7 The site is within the 2(a1) - Low Density (Restricted) Residential Zone under the provisions of Rockdale Local Environmental Plan 2000 (LEP 2000). Housing for older people or people with a disability is permissible with development consent in this zone. Clause 12(3) provides that consent must not be granted unless the development would be consistent with one or more of the objectives of the zone. The objectives are found in cl 28. 8 Rockdale City Council Development Control Plan No. 40 - Housing for Older People and People with a Disability (DCP 40) is relevant and provides specific requirements for Density (cl 5.3), A Sense of Home (cl 6.2), Site Planning (cl 10), Streetscape (cl 11), Building Appearance, Design and Materials (cl 12), Building Height (cl 13), Overshadowing (cl 14), Building Setbacks (cl 15), Landscaping, Recreation Areas and Open Space (cl 16) and Visual and Acoustic Privacy (cl 17). 9 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the Policy) applies. The site is not excluded from the provisions of the Policy by way of cl 4(6) and cl 5(3) provides that if the Policy is inconsistent with any other environmental planning instrument, made before or after the Policy, then the Policy prevails to the extent of the inconsistency. 10 Clause 10 states that "seniors housing" is residential accommodation that is, or is intended to be, used permanently for seniors or people with a disability and may take different forms consisting of: (a) a residential care facility, or (b) a hostel, or, (c) a group of self-contained dwellings, or (d) a combination of the above.