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. 11 Approval is sought for a residential care facility and cl 11 provides specific requirements for this form of seniors housing. 12 Clause 30 provides that consent must not be granted unless the Court is satisfied that the applicant has taken into account a site analysis prepared in accordance with the requirements of this clause. 13 Clause 32 provides that consent must not be granted to a development application unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to the Design principles in Division 2. These are relevantly, Neighbourhood amenity and streetscape (cl 33), Visual and acoustic privacy (cl 34) and Solar access and design for climate (cl 35). 14 Clause 40 provides that consent must not be granted to a development application unless the development complies with a site area of at least 1000 sq m (cl 40(2)), a frontage of 20 m measured at the building line (cl 40(3)), a height of 8 m or less (cl 40(4)(a)), 2 storeys in height (cl 40(4)(b)) and single storey in the rear 25% area of the site (cl 40(4)(c)). 15 The proposed development does not satisfy the requirements in cll 40(4)(a) and (b) and an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) have been submitted to show why strict compliance with this development standard is not required in this case. There was also a disagreement between the parties on the interpretation of cl 40(4)(c) and consequently whether compliance was achieved and this is addressed later in the judgment. For caution, the applicant has submitted a SEPP 1 objection if their interpretation of the clause is not accepted by the Court. 16 Division 2 provides standards concerning accessibility and usability for residential care facilities although the contents of this part of the Policy are limited to the following: Note . Development standards concerning accessibility and usability for residential care facilities are not specified in this policy. For relevant standards, see the Commonwealth aged care accreditation standards and the Building Code of Australia. 17 Part 7 provides development standards that cannot be used as grounds to refuse development consent. Clause 48 provides specific standards for residential care facilities and relevantly includes a building height of 8 m or less (cl 48(a), a floor space ratio (FSR) of 1:1 or less (cl 48(b), a landscaped area of 25 sq m for each residential bed (cl 48(c) and car parking rates for residents and visitors and ambulance parking (cl 48(d). The proposed development satisfies the standards for FSR and car parking but not the standards for building height and landscaped area. The contentions 18 The evidence in the proceedings focused on two principle areas; first the external impacts associated with the form and siting of the building and second; the internal configuration of the building associated with its usability and functionality. Mr Mark Adamson, a town planner for the council, and Mr Kim Burrell also a town planner for the applicant addressed the first area and Mr Greg Vickas, an architect and Mr Stan Manning, an aged care consultant addressed the second area. 19 The internal configuration of the building had increased significance following leave granted to rely on amended plans. Mr Manning provided evidence on the need for the amendments that were undertaken to improve the operational efficiency and amenity of the proposed facility. The amendments largely affect the internal layout of the building and do not change the building envelope, bulk or height in any meaningful way. As leave to rely on the amended plans was given only a few days prior to the hearing, leave was granted to the council to provide oral evidence on the changes. 20 Mr Vickas was commissioned by the council to address the amended plans. He provided a written statement raising a number of issues relating to the proposed amendments. Mr Manning and Mr Vickas provided oral evidence and a number of areas of disagreement were addressed. Helpfully, there was some agreement between Mr Manning and Mr Vickas that some of the concerns could be addressed through further discussion and some redesign of the internal configuration of building. For this reason, it was agreed that the most expedient way to progress the appeal would be to deal with the external impacts of the building and in the event that this area was considered acceptable by the Court, then Mr Manning and Mr Vickas could further discuss the matters raised over the internal configuration the building. 21 The applicant provided further expert evidence from Mr Mark Relf on access issues, Mr Andrew Morse on traffic and parking issues and Dr Renzo Tonin on acoustic issues. The council provided no corresponding expert evidence and only Dr Tonin was required for cross-examination. 22 The contentions raised by the council on the external impacts can be grouped into following two main areas: 1. the proposed building is unsuitable because it is uncharacteristic in the streetscape and out of character with the general area because of it's height, inadequate setbacks, absence of landscaping, bulk and scale and particular features of the design, and 2. the proposed building creates unacceptable amenity impacts on adjoining properties by way of loss of visual and aural privacy, loss of solar access and excessive bulk when viewed from adjoining properties. 23 On the site view, nine local residents provided oral evidence to the Court. The Court also had copies of the submissions provided to the council when the development application was advertised. The issues raised by the local residents fall generally within the contentions identified above but specifically relate to: - excessive height, - uncharacteristic bulk and length compared to existing buildings in the area, - inadequate car parking, - overdevelopment of the site, - unacceptable traffic impacts, - inadequate setbacks and landscaping, - unacceptable amenity impacts on adjoining properties, - non-compliances with the requirements of the Policy, and - precedent for similar applications in the area. Height The requirements 24 Clause 40(1) provides that the Court must not grant consent to a development application unless the development complies with the standards specified in this clause. Clause 40(4)(a) provides that if the development is proposed in a residential zone where residential flat buildings are not permitted, the height of all buildings in the proposed development must be 8 m or less. There was agreement that the 2(a1) zone did not permit residential flat buildings. Height is defined in cl 3 as: 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. 25 Ground level is defined in cl 3 as: ground level means the level of the site before the development is carried out pursuant to this Policy. 26 Clause 12.5 of DCP 40 provides qualitative requirements for building height and mass. The evidence – height 27 Mr Adamson states that the maximum height is 9.6 m although the plans indicate a height to the upper point of the pitched roof of around 11 m. The non-compliance highlights the bulk and scale of the proposed development that is in excess of that specified by the Policy and beyond that anticipated within the context of the location. The height and associated scale and bulk are exacerbated by the length of facades to the boundaries, detailing, parapets with railings and lack of landscaped setbacks. 28 Mr Burrell accepts that measurements used by Mr Adamson but states that the 8 m requirement in the Policy does not address overall height but relates height to the ceiling of the topmost floor of the building. Based on the definitions, the proposed building height is 9.6 m measured to the ceiling of the lift lobby on the building roof however if the lift foyer area is removed, the 8 m maximum height is achieved. Findings – height 29 Mr Adamson and Mr Burrell agree that the breach of the 8 m height standard occurs only at the rooftop level by the structure identified as the lift lobby and part of the covered fire stair on the northern side of the building. The remainder of the building containing the two levels of accommodation and ancillary facilities satisfies the 8 m maximum height requirement. 30 Mr Burrell provided a SEPP 1 objection to show why strict compliance with the development standard was unreasonable and unnecessary in this case. The SEPP 1 objections address the height development standard and also the storey development standard and the single storey rear setback development standard. Mr Burrell states the objectives for these standards are interrelated and support for the variations are interchangeable in a number of areas. 31 As the Policy contains no objectives for the height development standard Mr Burrell adopts the objectives from Seniors Living Policy; Urban Design Guidelines for Infill Development (the Guidelines) published in March 2004 by the then Department of Infrastructure, Planning and Natural Resources, even though the requirement to consider the Guidelines in cl 31 refers only to infill self-care housing and not residential care facilities. The objectives used by Mr Burrell are those objectives in 4. Impacts on Neighbours of the Guidelines. The objectives are: + to minimise impacts on the privacy and amenity of existing neighbouring dwellings, + to minimise overshadowing of existing dwellings and private open space by new dwellings, + to retain neighbours views and outlook to existing mature planting and tree canopy, + to reduce the apparent bulk of development at its impact on neighbouring properties, + to provide adequate building separation. 32 Mr Burrell addresses each of the objectives and concludes that strict compliance with all standards in relation to height is unnecessary to achieve the objectives of the planning control and it would therefore be unreasonable to require compliance. 33 Mr Adamson's statement of evidence indicates that at the time of writing, no SEPP 1 objections had been submitted. In the joint report, Mr Adamson simply states that the arguments put forward in the SEPP 1 objection on the basis of amenity, character and bulk and scale are not supported for the reasons set out in his statement of evidence. As I understand, these relate matters such as scale and bulk, length of facades, detailing, parapets with railings and lack of landscaped setbacks. 34 In this case, the appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 35 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage – (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land . 36 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded. 37 While Mr Adamson did not question the objectives adopted by Mr Burrell, I do not accept that they reasonably reflect the objectives of the height development standard. Not surprisingly, the objectives adopted by Mr Burrell relate solely to the impact on residential properties and not the wider impacts of the height of the building on character and streetscape. Given that specific objectives are provided in DCP 40 for building height, I see no reason why these should not be used in the absence of any objectives within the Policy as they specifically address the development standard in question. The objectives in DCP 40 for building height are: * To ensure that new development is in character with and sympathetic to the scale of adjacent residential buildings and the surrounding streetscape. * To ensure development has minimal impact on neighbouring properties in terms of building dominance, overshadowing, privacy and views. * To minimise the impact of multiunit housing in areas where there is substantial detached housing. 38 Even though the DCP 40 objectives are more extensive than those addressed by Mr Burrell and Mr Adamson, their evidence addresses the additional objectives relating to streetscape and character. 39 A fundamental component of the breach of the height requirement is the use of the rooftop for recreational facilities for the occupants of the facility. The breach to the height requirement occurs as a result of the need to gain lift access and also provide enclosed fire stairs from this area. Even though Mr Adamson raised a number of concerns over the use of the rooftop for recreational facilities, I accept that this area is an important part of the development as it provides a convenient area of open space for the residents of the development with minimal impact on adjoining properties. 40 If the proposed development is tested against the building height objectives in DCP 40, I do not accept that the pitched roof form for the lift lobby and part of the covered fire stair are acceptable. Mr Burrell is correct in stating that a pitched roof covering the whole roof area would not breach the height development standard however the 35° pitch of the roof creates an overly prominent feature of the building even though it only occupies a part of the rooftop area and is likely to be hidden from some viewing locations. In my view, Mr Burrell's scenario of a pitched roof on the building would be far more consistent with the majority of the existing building form in the area. When combined with the lift over run, the perception of the building is of a 3 storey structure, which is inconsistent with the generally single and 2 storey character of the area. 41 The covered fire stair is in my view, even more problematic as it is not located towards the centre of the building (like the lift foyer) but directly adjoining the northern boundary. This structure is a clumsy element in the design and will be clearly visible from the rear yards of the properties to the north of the site and from some locations in Lawson Street. It would be an area that would likely extend beyond the form of Mr Burrell's hypothetical pitched roof and further highlight the inconsistency with the predominantly single and 2 storey nature of the area. The plans are also unclear as to the extent of this structure on the northern elevation with the elevation plan showing the angled roof constructed behind the parapet whereas the plan shows the angled roof extending beyond the parapet. 42 If the development is tested against the objectives in DCP 40 for height then I am satisfied that the building would be inconsistent with the objectives in that it will not have minimal impact on neighbouring properties in terms of building dominance and will not minimise the impact of multiunit housing in areas where there is substantial detached housing. 43 I am not satisfied that the breach of the height development standard is consistent with the aims of SEPP 1. I am also not satisfied that compliance with the height development standard would tend to hinder the attainment of the specified objects of the EPA Act. 44 It follows that compliance with the height development standard is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded. The consequence is that the appeal must be dismissed and development consent refused. Number of storeys The requirements 45 Clause 40(1) provides that the Court must not grant consent to a development application unless the development complies with the standards specified in this clause. Clause 40(4)(b) provides that if the development is proposed in a residential zone where residential flat buildings are not permitted, 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 not be more than two storeys in height. Clause 3(2) provides that in calculating the number of storeys in a development for the purposes of the Policy, a car park that does not extend above ground level by more than 1 m is not to be counted as a storey. 46 The Note to cl 40(4)(b) states: Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. 47 Clause 12.5 of DCP 40 provides qualitative requirements for building height and mass. Clause 13 provides maximum height for various zones although zone 2(a1) is not identified in the clause. The evidence – number of storeys 48 Mr Adamson states that a portion of the building towards the Lawson Street frontage extends above ground level by more than 1 m and therefore constitutes a storey. The roof element is also a storey, by definition, making the building 4 storeys. 49 Mr Burrell accepts that the building is 3 storeys in height for more than half of the building because the basement rises 1.2 m above ground level thereby requiring this area to be classified as a storey. The roof element is also a storey, by definition, making the building 4 storeys in height. 50 Mr Burrell adopts the terms of the Note to cl 40(4)(b) as the objective for the storey development standard. It states the purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. Findings – number of storeys 51 Mr Adamson and Mr Burrell agree that the breach of the storey standard at the basement level occurs over more than 50% of the building with the maximum departure being some 200 mm (or 1.2 m above ground level) at the Lawson Street elevation. There was also agreement that the ability to satisfy the storey requirement by reducing the extent of the basement above ground level is limited by the need to maintain the grade of the access driveway to the basement level and to not breach the existing ground water levels. 52 Mr Burrell states that the proposal is consistent with the objective in cl 40(4)(b) as the proposal, when viewed in the streetscape, continues the 2 storey scale of buildings on the southern side of the site. He notes that the proposal provides setbacks generally in accordance with the council controls on the southern side and maintains a sense of openness to the neighbours. The roof element, while constituting a storey, will not be perceived in the streetscape because it is located towards the middle of the building and is concealed in a conventional pitched roof form. The transition to the immediately adjoining single garage in Fontainebleau Street is a change in height but is not a change of scale that would adversely affect the streetscape. Also, the proposal is an acceptable lower scale transition from the much larger scale residential flat buildings to the west and relates well to the 2 storey detached buildings in Fontainebleau Street. 53 As I understand Mr Adamson did not object to the objective of the storey development standard but reiterated his previous comments that the arguments put forward in the SEPP 1 objection on the basis of amenity, character and bulk and scale are not supported for the reasons mentioned previously. 54 The tests in Winten are also appropriate for the consideration of the SEPP 1 objection to the storey development standard. Accepting that the objective of the development standard is that identified by Mr Burrell and that streetscape has the meaning in cl 3, I am not satisfied that the proposed development is consistent with this objective. 55 Mr Burrell is partially correct in stating that the roof form will not be visible from the street however this would only apply when directly in front of the proposed building. The roof form will be visible from the street when looking at the building from an oblique angle down the side setbacks and over the single storey structures in the rear yards of the properties fronting Fontainebleau Street. The covered fire stair will be visible from the north of the site. These features give the building the appearance of the 3 storey building and contrary to the evidence of Mr Burrell, I do not accept that the proposed roof form can be compared, in any reasonable assessment, to a 2 storey building with a pitched roof. 56 The proposed development could not be seen as being consistent with the existing largely single and 2 storey character of the locality because of the visual appearance of the roof form that would be construed as an additional storey. I am satisfied that for the purposes of the objective, the roof form could be seen to create an abrupt change in scale in the streetscape. In coming to this conclusion I have relied on the Macquarie Dictionary (Second Edition) definition of "abrupt" which, in part, states: 1. terminating or changing suddenly, 2.sudden; unceremonious, 3. lacking in continuity; having sudden transitions from one subject to another 57 While there are a number of older style 3 storey residential flat buildings to the west of the site, the predominant visual catchment for assessing the character and streetscape is from Lawson Street and Fontainebleau Street where the predominant form of development is single and 2 storey residential dwellings. 58 The extension of the basement car parking by some 200 mm above that considered not to be a storey under the provisions of the Policy is not a matter, in my opinion, that would warrant the refusal of the application for this reason alone, given the relatively small numerical non-compliance and the compliance with the height requirements at this point of the building. 59 If the development is tested against the objective for storey development standard then I am satisfied that the building would be inconsistent with the objective in that it will provide an abrupt change in the scale of development in the streetscape. 60 I am not satisfied that the breach of the storey development standard is consistent with the aims of SEPP 1. I am also not satisfied that compliance with the storey development standard would tend to hinder the attainment of the specified objects of the EPA Act. 61 It follows that compliance with the storey development standard is not unreasonable or unnecessary in this case and that the SEPP 1 objection is not well founded. The consequence is that the appeal must be dismissed and development consent refused. Rear single storey area The requirements 62 Clause 40(1) provides that the Court must not grant consent to a development application unless the development complies with the standards specified in this clause. Clause 40(4)(c) provides that a building located in the rear 25% area of the site must not exceed 1 storey in height. The evidence – rear single storey area 63 Mr Adamson and Mr Burrell differ on the means of calculating the rear 25% of the site area and consequently whether the proposed development satisfies the requirements in cl 40(4)(c). To determine the area, Mr Adamson marks a point along each side boundary at 25% of the boundary length when measured from the rear boundary. A line is drawn between these two points parallel to the rear boundary to delineate the area required for single storey development in accordance with this clause. The area identified by Mr Adamson has an area of around 458 sq m (or 33% of the 1401.1 sq m site area). Mr Burrell adopts a different approach by calculating 25% of the site area (350 sq m) then drawing a line parallel to the rear boundary to contain the 350 sq m area. Findings - rear single storey area 64 Clause 40(4)(c) provides little guidance in terms of defining the rear 25% of the site when the site is not rectangular. In considering the two different approaches of Mr Adamson and Mr Burrell, I agree that the method of Mr Burrell should be used. Importantly, the clause makes specific reference to an "area of 25% of the site". Mr Adamson's method results in an area greater than 25% of the site area and, in my view, must be seen as inconsistent with the requirements of the clause. In the absence of any greater guidance from the Policy, the approach of Mr Burrell would seem to be a fair and practical approach to delineating the area required by cl 40(4)(c). 65 Mr Burrell marked on a copy of the level 1 floor plan, the location of the line that he identified as the rear 25% of the site. This line indicated a small encroachment in the north-west and south-west corners of the building. Mr Burrell provided a SEPP 1 objection to show why strict compliance with the development standard was unreasonable and unnecessary in this case. The SEPP 1 objection relied on the previously identified objectives from the Guidelines. 66 As other reasons have been identified that warrant the refusal of the development application it is not necessary to review the SEPP 1 objection for this development standard beyond stating that if tested against the identified objectives, then I would accept that be SEPP 1 is well founded. Alternatively, conditions could be imposed to remove the small encroaching parts of the building from the area identified by Mr Burrell. Character/ streetscape The requirements 67 Clause 32 provides that consent must not be granted to a development application unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles set out in Division 2. Relevantly, cl 33 addresses neighbourhood amenity and streetscape and relevantly states that 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, and . (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and 68 Streetscape is defined in cl 3 as: streetscape means the character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of the built and landscape features when viewed from the street. 69 The Policy provides no numerical requirements for street, side or rear setbacks but relies on the general requirements in cl 33(c)(i) and (iv) and (d). 70 Clause 12 of DCP 40 provides qualitative requirements for building appearance, design and materials, including specific qualitative requirements for streetscape and the built form (cl 12.2). For two-storey buildings, cl 15.1 provides for a 7.5 m front setback and a minimum 3 m side and rear setback. The evidence – character/ streetscape 71 Mr Adamson states that the scale of the proposed development does not respond to the character of the area. The expansive footprint of the building and height do not reflect the character contained within the zone. The character of Lawson Street, Merial Street and Fontainebleau Street, in the vicinity of the proposal, is defined by single and 2 storey residential construction. Also, the front elevation results in an unattractive streetscape and introduces a uncharacteristic foreign design element into the visual catchment of Lawson Street. For these reasons, Mr Adamson states that the proposal does not satisfy the objectives of the Policy. 72 Mr Burrell states that the location presents a variety of built form undergoing transition and the proposal displays elements that are desirable or preferable and will fit well within the streetscape. The proposed two-storey structure with parapets and a minor pitched roof element is consistent with the evolving character of the locality. Findings – character/ streetscape 73 To allow the Court to make findings on whether it is satisfied that the proposed development demonstrates that adequate regard has been given to neighbourhood amenity and streetscape it is necessary to establish the location's current character. With the benefit of the site view, the character could be described as being dominated by residential development but with a large range of different forms including older style single storey residential dwellings, single level villas, 2 storey townhouses, 2 storey residential dwellings, renovated older style residential dwellings and 3 storey residential flat buildings that have frontage to Rocky Point Road. The street setbacks are largely consistent and contain landscaping in most cases. The majority of properties have low fencing or no fencing with landscaping to define the street boundary. 74 In considering the proposed development in this context and taking into account the form of development anticipated by the Policy, I am not satisfied that the proposed development has given adequate regard to neighbourhood amenity and streetscape in a number of important areas. I do not accept Mr Burrell's evidence that the site is located within the precinct undergoing transition as the range of residential development is largely consistent with the range of different residential zonings in the vicinity of the site. 75 First, the front setback. While the main part of the building is set back in sympathy with the existing building line, the first floor decking extends around halfway (3.5 m) into the setback area. As I understand this area also serves as shelter for persons entering the building on the ground level from the circular driveway. In my view, the disbenefits on the streetscape and character significantly outweigh the benefits of the additional recreation area of the decking and shelter for persons entering the building. The setback also provides little landscaping, with the majority of the setback area used for hard stand areas such as driveways and access. It could not be reasonably argued that the limited planting in the front setback area is in sympathy with other planting in the streetscape. 76 Second, the side setbacks. The proposal generally provides for a 2 m setback at the ground level and a 3 m setback at the upper level although there are areas where these setbacks increase through the building modulation. The 2 m ground level setback generally coincides with the extent of the basement car park. I am not satisfied that 2 m setback on the northern and southern boundary is acceptable for a building of the size proposed in this application. Little landscaping has been provided within the setback largely because of the need to provide a path way within the setback area for a general access path way as well as the necessary access from the fire stairs to Lawson Street. The landscaping is limited to a strip of some 400 mm in width along the northern and southern boundaries. Given the scale of the proposed building and the form of the building anticipated by the Policy, landscaping is an important consideration in screening and minimising the visual impact of the building from adjoining properties. This has particular importance when the properties in Fontainebleau Street have their outdoor living areas directly adjoining the site. DCP 40 advocates a minimum setback of 3 m and I would accept that this should be the minimum in this case as it would allow greater landscaping while still providing for the pathways. 77 Third, building bulk. The proposed building provides long unbroken elevations to the southern and northern boundaries. The northern elevation provides a length around 41 m with 35 m of this elevation being 2 storeys. The southern elevation provides a length of around 30 m with 28 m being of 2 storey construction. Even accepting that the attempts by the applicant to provide some articulation through varying setbacks and the use of different materials and features on the elevation has provided some interest and partially reduced the visual appearance of the building from adjoining properties, the building nonetheless still appears as a single entity. A more acceptable visual appearance from the adjoining properties could be achieved through creating the appearance of two separate buildings by breaking the continuous facade. 78 Fourth, the roof form. This part of the proposed building has been addressed earlier in the judgement and found to be unacceptable in terms of the height and storey development standards. It is equally unacceptable in terms of streetscape and the perception of building bulk when viewed from adjoining residential properties. Landscaped area The requirements 79 Clause 48(c) provides that consent cannot be refused for a residential care facility if a minimum of 25 sq m of landscaped area per residential bed is provided. Landscaped area is defined in cl 3 as: landscaped area means that part of the site area that is not occupied by any building and includes so much of that part as is used or to be used for rainwater tanks, swimming pools or open-air recreational facilities, but does not include so much of that part as is used or to be used for driveways or parking areas. 80 Clause 16 of the DCP 40 provides requirements for landscaping, recreation areas and open space. Clause 16.1 provides that a minimum of 40% of the site for a two-storey building is to be allocated as landscaped area and natural/ soft landscaping is to be a minimum of 35% of the site area. The evidence –landscaped area 81 Mr Adamson states that the requirement in cl 48(c) is a minimum design criteria and the inability to comply with this requirement serves to both compromise the amenity of occupants and to demonstrate that the intensity of development in relation to the constraints of the site. In his calculation, the proposal provides a landscape area of 459 sq m (or around 8.5 sq m per bed). The shortfall is substantial and cannot be adequately justified. The proposal also fails to satisfy the requirements in DCP 40. 82 Mr Burrell acknowledges that the proposal provides a landscaped area equivalent to around 8.5 sq m per bed however a development that complied with the standard would require 1350 sq m of landscaped area based on the amended application for 54 beds. This needs to be compared to the total site area of 1401 sq m. In his opinion, the proposal provides an acceptable standard of landscaped area in terms of quantity and quality for the likely occupants of the development and setting. Findings - landscaped area 83 Clause 48 provides standards that cannot be used to refuse development consent. The landscaped area requirement in cl 48(c) is not a development standard and non-compliance with the requirement is not necessarily a reason to refuse the application. A non-compliance requires a merit assessment of the particular requirement. 84 The evidence of Mr Adamson and Mr Burrell accepted that the landscaped area requirement should be based on the unbuilt upon area of the site that was generally located at the rear. Their evidence did not suggest that the rooftop recreational area should be included in the calculation of landscaped area although Mr Burrell indicated that if the rooftop recreational area is included in the calculation, there would be a total of 1316 sq m of landscaped area. This is the equivalent of 24.4 sq m per bed for 54 beds. 85 Mr Cole, for the council, submitted that the rooftop recreational area did not fall within the definition of landscaped area and therefore should not be included in any calculations while Mr Tomasetti SC came to the opposite conclusion based on the same definition of landscaped area. 86 It is not necessary to deal with the competing submissions of Mr Cole and Mr Tomasetti on the definition of landscaped area as the inclusion of the rooftop recreational area still does not satisfy the requirement of 25 sq m per bed in cl 48(c). I am however satisfied that the rooftop recreational area provides a genuine and relevant recreational facility for the likely residents of the residential care facility. It is conveniently located via the lift from the accommodation levels and is importantly accessible for residents who may have a disability and require a wheelchair or some other form of transport for mobility. Recreational facilities are also available elsewhere on the site for more mobile residents. 87 Overall, I accept that adequate landscaped area is provided. Amenity of adjoining properties The requirements 88 Clause 32 provides that consent must not be granted to a development application unless the Court is satisfied that the proposed development demonstrates that adequate has been given to a number of principles set out in Division 2. Relevantly, cl 34 addresses visual and acoustic privacy and states: The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and (b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths. 89 Clause 35 addresses solar access and design for climate and states: The proposed development should: (a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction. 90 The evidence – amenity of adjoining properties Mr Adamson states that the proposal will result in privacy issues because of the overlooking into adjoining properties from within the proposed building. The proposed landscaping is located very close to the northern common boundary and in his opinion the attempt to screen and both of the impacts of the development will give rise to ongoing maintenance for the adjoining owners and is symptomatic of the overdevelopment of the site. Similarly, the proposed planting on the southern boundary will not provide any assistance in terms of overlooking. 91 Mr Adamson states that the landscaping on the rooftop terrace area could provide screening however he does not accept that the rooftop garden use of such a scale and density to be successful. 92 Mr Burrell states that a suitable level of amenity is maintained in terms of spatial relationships and landscaping. The landscaping on the roof terrace is not aimed at controlling overlooking as the recessed planter boxes provide an effective overlooking control but providing a pleasant outdoor environment for residents. 93 In terms of overshadowing, Mr Adamson is of the view that there is significant overshadowing of the adjoining property at 47/47A Lawson Street. This is a direct consequence of the proximity of the proposal to the adjoining boundary and its excessive height and length. Mr Burrell does not accept the conclusions of Mr Adamson and states that the orientation of the site and the appropriate siting of a building with respect to the pattern of development are significant factors in considering the issue of overshadowing. Findings - amenity of adjoining properties 94 The potential impact on the amenity of adjoining properties centres on the following main areas: Overlooking from the roof terrace 95 Having previously found that the roof terrace is acceptable, I am satisfied that the approach adopted by the applicant of setting back landscaped planter boxes from the edge of the roof terrace provides an acceptable means of minimising overlooking from the terrace, although increased setbacks in some areas from the edge of the building would ensure greater protection of overlooking while only reducing the available area by a small amount. The appropriate setback would need to be confirmed through likely sight lines from the rooftop terrace to the adjoining residential dwellings. 96 Given the nature of the proposed development and the unchallenged evidence of Dr Tonin, I accept that the use of the roof terrace should not generate any unacceptable acoustic privacy issues. Overlooking from the first floor windows 97 Overlooking from the first floor windows, particularly into the rear yards of the residential properties in Fontainebleau Street was addressed by the use of fixed translucent windows to 1.5 m in height with opening windows above this level. In accepting that this will address the potential overlooking issues, it does not, in my view, provide a particularly desirable amenity outcome for the future occupants of the building who may spend a relatively large part of their day in the rooms. If possible, it would seem more desirable to address the overlooking issues through the design of the building and the use of translucent glass or shutters should be used only if a design solution was not possible. 98 In accordance with cl 32, I am satisfied that the proposed development demonstrates that adequate has been given to visual and acoustic privacy although some minor design changes may be required. Overshadowing of the adjoining property 99 On this issue, I agree with Mr Adamson that that there is an unacceptable overshadowing impact on the adjoining property at 47/47A Lawson Street that relates directly to the height of the building and the setback in the vicinity of the adjoining property. Even though the owner of the adjoining property did not object to the proposed development, it would be unreasonable to impose the level of overshadowing created by the proposed development on this property. 100 In accordance with cl 32, I am not satisfied that the proposed development demonstrates that adequate has been given to solar access and design for climate. Issues raised by residents 101 The issues raised by residents are largely addressed in the preceding paragraphs with the exception of the issues relating to car parking, traffic and precedent. The amount of car parking satisfies the requirements of the Policy and as such cannot be a reason for refusal. The traffic issues have been addressed by the expert report of Mr Morse who found no traffic matters that would warrant the refusal of the application and in the absence of any other expert evidence to refute the conclusions of Mr Morse I accept his evidence. The issue of precedent is a valid planning consideration however given the particular characteristics of the site, I do not accept that even if approval was granted it could be used as a precedent for the approval of other applications in the locality. Orders 102 The Orders of the Court are: 1. The appeal is dismissed. 2. 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 is refused. 3. The exhibits are returned. ____________ G T Brown Commissioner of the Court 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.