Land and Environment Court of New South Wales CITATION : Mc Fadyen v Kogarah Council [2007] NSWLEC 8 Applicant: McFadyen Architects Pty Ltd and the Macedonian Aged Care Accommodation Ltd PARTIES : Respondent: Kogarah Council FILE NUMBER(S) : 10316 of 2006 CORAM: Roseth SC KEY ISSUES: Development Application :- Residential care facility LEGISLATION CITED: State Environmental Planning Policy Seniors Living DATES OF HEARING: 18/12/2006 and 19/12/2006 DATE OF JUDGMENT: 10 January 2007 Applicant: LEGAL REPRESENTATIVES: Mr J Ayling SC instructed by Ms S Hill, solicitor Ms C Schofield, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 10 January 2007 10316 of 2006 McFadyen Architects Pty Ltd and the Macedonian Aged Care and Accommiodation Ltd v Kogarah Council JUDGMENT 1 Senior Commissioner: This is an appeal against the deemed refusal by Kogarah Council (the council) of a development application to demolish the existing buildings and erect a two-storey residential care facility containing 64 beds over basement parking on lots 1 and 2 DP 7754, known as 220-202 West Street, Carlton. The site 2 The site comprises two residential allotments, on one of which now stands a large house. On the other allotment the existing building is small. The combined area of the allotments is 3,080m2. The location is on the east side of West Street, about 50m from its intersection with Blakesley Road. The surrounding area is low-density housing and zoned for that purpose. The site is flat and largely without vegetation except for three trees near the south boundary. 3 To the rear of the site is industrial land. The property to the south is 204 West Street, a detached house. Along the north boundary are the rear boundaries of eleven residential properties facing Blakesley Road, though only eight of these are along that part of the site that can be developed. The proposal and its history 4 The applicant proposes to demolish the existing buildings on the site and to erect a two-storey building to be used as a low-care residential care facility containing 64 beds with associated facilities. The basement provides parking for 17 cars, as well as a loading bay for deliveries and parking for ambulances. The building is 77m long. The length is the main attribute of the proposal about which the council is concerned. 5 The applicant lodged the application in October 2005. Following notification, the council received 17 objections and a petition with 42 signatures. Following discussions with the council, the applicant lodged amended drawings in March 2006. When these were advertised, they attracted 7 submissions. The applicant lodged the appeal in April 2006. Relevant planning instruments and policies 6 The application is made under State Environmental Planning Policy Seniors Living (SEPPSL). The Kogarah municipality is governed by the Kogarah Local Environmental Plan 1998. Kogarah also has a development control plan for accommodation for older people and people with a disability. SEPPSL overrides the provisions of the two latter instruments to the extent of any inconsistency. 7 In its Statement of Basic Facts the council quoted the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment as a relevant planning control, however there was no reference to this instrument in the evidence. The issues 8 The council submitted a revised Statement of Issues that contained seven issues, of which it pressed five. These were debated during the hearing. The following emerged as the major issues: · Whether the form and character of the proposal is compatible with its surroundings. · Whether the impact (overshadowing, visual bulk and overlooking) on neighbouring properties is acceptable. · Whether the internal amenity of the bedrooms is acceptable. The objectors' concerns 9 The Court heard the evidence of six objectors during the site visit. Ms J Hanna, who lives at 206 West Street (a property that is removed from the subject site by No 204), said that the area had its fair share of nursing homes and did not need any more of them. She was concerned about the safety of the occupants, should they get out of the building. Her other concerns were the impact on the privacy of the rear yards of the adjoining Blakeshurst Road properties. Her further concerns were that the lights would not be turned off early, the disturbance caused by staff arriving at 5am and double parking, the last being a problem that occurs in an existing nursing home in Chedder Street. Mr T Reguz, who lives at 216 West Street, endorsed Ms Hanna's concerns. 10 Ms M Smith, who lives at 204 West Street, directly adjoining the site to the southeast, said that her concern was overshadowing, overlooking and the proximity of a long building. Mr I Svetanovski, who lives at 56 Blakesley Road, has a rear boundary that adjoins the northwest side boundary of the site. He was mainly concerned about the length of the building along his rear boundary and the number of windows from which there was a potential to overlook his rear yard. He was also worried about the noise of ambulances and increase in traffic. Mr S Papaionnou, who lives at 60 Blakesley Road, also adjoining the site, had similar concerns to Mr Svetanovski. Mr R Bassil, whose property at 62 Blakesley Road adjoins Mr Papaionnou's, had similar concerns too. 11 I discuss this evidence under the heading Impact on neighbours below. Compatibility of form and character 12 The floor space ratio (FSR) of the proposal is 0.91:1. The planning experts were Mr M Devlin, a council planner, and Mr D Crane, a planning consultant engaged by the applicant. Mr Devlin told the Court that the side and front setbacks of the proposal were adequate and that its appearance to West Street was acceptable. His concern was that the building was 77m long and in a single mass, ie without a break. He would have preferred a building that has a sizable break along its length, at least on the upper level. 13 Mr Crane pointed out that the building needed to be in one block in order to function. He noted that the ceiling height was considerably under 8m, and that there was existing and future vegetation along the sides, which would reduce the visual impact on the neighbours. 14 Clause 79 of the SEPPSL states: Standards that cannot be used to refuse development consent for residential care facilities A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds: (a) building height: if all proposed buildings are 8 metres or less in height, or (b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less, (c) landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided, (d) parking for residents and visitors: if at least the following is provided: (i) 1 parking space for each 10 dwellings in the residential care facility (or 1 parking space for each 15 dwellings if the facility provides care only for persons with dementia), and (ii) 1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time, and (iii) 1 parking space suitable for an ambulance. Note. The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent. 15 I interpret the above that, where a proposal has a FSR 1:1 or less, it cannot be refused on the basis of density and scale. Nor can it be refused on the basis of other words that are the same or similar in meaning as density and scale. While the council deleted the word scale from its Statement of Issues, the remaining words "form and character" have a similar meaning in the context in which the council uses them. 16 In my opinion, cl 79 anticipates a certain form and character, which are associated with buildings with a FSR of 1:1. I do not mean to say that form and character always have the same meaning as density and scale. However, in this case the council did not use the word "character" with reference to architectural expression but as a proxy for the amount of building on the site. Similarly, it used the word "form" to imply that parts of the building, at least on the upper level, should be deleted. Such deletion would decrease the building's FSR. I would accept the argument that form and character are different to density and scale only if it could be shown that a building of the same FSR could be designed having a more compatible form and character with its surroundings. (This would be the case, for example, if the proposal had large voids inside it so as to expand its overall volume.) There was no suggestion, however, that the subject proposal appeared any bulkier than a building with a FSR of 1:1 is likely to. 17 In fact, the proposal's designer has attempted to minimise the building's bulk. The FSR is about 10% less than indicated in cl 79, the height is significantly less than 8m, and the setbacks are the maximum that can be achieved on this site. In the circumstances, I do not think that the Court has the power to refuse the application on the grounds of form and character. 18 I note that the council's advocate, Ms C Schofield, pointed out that cl 78 of the SEPPSL provides that a proposal must pay adequate regard to the design principles set out in Division 2 Part 3 of the Plan. The tenor of those principles is that proposals (or at least their designers) must recognise the desirable elements of the location's current character, so that new buildings contribute to the quantity and identity of the area (cl 31(a) of the SEPPSL). In my opinion, these principles have to be read together cl 79. The requirement to contribute to the existing character is made of a building that has a FSR of 1:1. A building with a FSR at least three times that of surrounding development will not contribute in the same way as would a building with a FSR that is similar to that of the surrounding development. 19 Despite the above, I have given careful consideration to Mr Devlin's suggestion that the length of the building should be broken, at least at the upper level. In my opinion, little would be achieved by it. If the break occurs at the upper level only, it cannot be emphasised by landscaping, since there would be no break at ground level to allow planting. The break would reduce the number of windows that face the rear of the Blakeshurst Road properties. The adverse impact on the efficiency and functioning of the residential care facility would, however, be considerable. 20 In summary, I agree with Mr Devlin and the objectors that the proposal has a denser and bulkier form and character than the surrounding development. In my opinion, this is an inevitable consequence of cl 79 of the SEPPSL. Clause 79 prevents the consent authority from refusing the proposal on the grounds of form and character. Impact on neighbours 21 There are three kinds of impact on neighbours: · visual bulk; · overshadowing; and · overlooking. 22 The visual bulk of the proposal impacts on adjoining properties because the proposal covers parts of the site that were traditionally rear yards. The proposal is a long building and there are no breaks in it. In order to fit into the surrounding environment, the proposal would have to be less than half its length. To require this order of reduction would not be reasonable, or even lawful. While the visual impact is considerable, it is mitigated to some extent by the proposal's relatively low height (for a two-storey building) and landscaping. 23 The only property that is overshadowed is No 204. The overshadowing occurs after 2pm at mid-winter. Until then a substantial part of the rear yard is unaffected. According to Mr Devlin, this is not a reason for refusal and I accept his evidence. 24 Overlooking is probably the most significant of the impacts, since the majority of bedrooms, of necessity, face the side boundaries. The proposal incorporates louvres to the windows of those bedrooms. The louvres will deflect the view away from the rear yards of adjoining properties while allowing the sun to penetrate. The occupants of those bedrooms will not be able to look into the adjoining properties. Despite this, the perception of being overlooked will remain. I cannot think of any way to avoid this, given that the SEPPSL permits a much larger building for a residential care facility on this site than the houses around it. 25 The impact on neighbours is not a reason for refusing this proposal. Internal amenity 26 Mr Devlin's criticism is that a proportion of bedrooms have southeast orientation and will receive little sunlight in mid-winter. In addition, the louvres on the windows of the bedrooms, while providing relief to the adjoining properties, will reduce the amenity of those bedrooms. I do not think that Mr Devlin's criticism is fair. Given the site's orientation, the only way all bedrooms could have north orientation would be to have a row of bedrooms on only one side of a corridor. This would not be practicable. As regards the louvres, these are for the benefit of the neighbours. It seems unreasonable to criticise the proposal because it overlooks the neighbours and then to criticise it when the applicant has provided louvres to minimise overlooking. Conclusions 27 The main criticism of this proposal is that it is denser than the residential development around it. The application is made under SEPPSL, a planning instrument that, for residential care facilities up to a FSR of 1:1, takes away the consent authority's power to refuse the application on the grounds of increased density. In the circumstances the only course open to the Court is to consent to the application. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing buildings and erect a two-storey residential care facility containing 64 beds over basement parking on lots 1 and 2 DP 7754, known as 220-202 West Street, Carlton is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 7 and A. __________________ Dr John Roseth Senior Commissioner 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.