Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014

Land and Environment Court of New South Wales

CITATION : Jenny-Lynn Properties Pty Ltd v Rockdale City Council [2010] NSWLEC 1014

APPLICANT Jenny-Lynn Properties Pty Ltd PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 10277 of 2009

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- residential care facility, alterations and additions, amenity impacts on neighbouring properties, appearance, bulk and scale; visual and acoustic privacy; overshadowing, car parking, internal amenity, open space, indoor living areas, staff facilities, character and streetscape.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Rockdale Local Environmental Plan 2000 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Development Control Plan No 40 - Housing for Older People and People with a Disability

DATES OF HEARING: 2-3 December 2009

DATE OF JUDGMENT: 22 January 2010

APPLICANT Miss F Berglund (barrister) SOLICITOR Ryan Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr J Cole (solicitor) SOLICITOR HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

22 January 2010

10277 of 2009 Jenny-Lynn Properties Pty Ltd v Rockdale City Council

JUDGMENT Introduction 1 This appeal relates to the refusal by the Rockdale City Council a development application (2008/242) for alterations and additions to the existing Jenny Lyn Nursing Home at 13 Henson Street and 4 Reading Road, Brighton le Sands. 2 Taking into account the submissions made on behalf of the parties, the expert and resident evidence and having inspected the site and its environs for the reasons given in this judgment, I have decided that the appeal should be dismissed and the development application refused. The site and the proposal 3 The nursing home or residential care facility has operated on its present site in Henson Street for the past 25 years. It is presently contained within an existing two-storey building and provides 38 beds with associated facilities. There is parking for three cars in the front setback area plus an ambulance bay. It is now proposed to demolish and reconstruct a significant proportion of the existing building. 4 In addition the existing dwelling house on the adjoining site at 4 Reading Road is to be demolished and the site utilised for the construction of a two-storey plus basement as an addition/extension to the existing nursing home. This will increase the number of beds by 17 to a total of 55. The basement will have access off Reading Road and will provide an additional four car parking spaces plus a plant room, staff amenities and kitchen. The three levels of the extended building will be connected with a lift. 5 The combined "L" shaped site, comprising 13 Henson Street and 4 Reading Road (Lot 1 DP 525322 and Lot 2 DP 317355) has a total area of 1,130 sq m. It has a splayed frontage to Henson Street of 23.6 m and a width of 16.4 m at the building line and a frontage/width to Reading Road of 10.97 m. The site is relatively level. There are four trees on the site that are to be removed. The surrounding locality is developed with detached, mainly single-storey and some two-storey dwelling houses and several single-storey villas. Planning controls Rockdale Local Environmental Plan 2000 6 Under the Rockdale Local Environmental Plan 2000 The Henson Street property is zoned 2(a) Low Density Residential and the Reading Road property is zoned 2(b) Villa/Townhouse Residential and in these (low-density) zones the proposal, falling within the definition of housing for older people or people with a disability, is permissible with development consent. Residential flat buildings are prohibited in these zones. 7 Clause 12 (3) of the LEP provides that consent must not be granted unless the development would be consistent with one or more objectives of the zone. The objectives of these residential zones seek, inter alia, to protect the character and amenity of the area. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 8 Also applicable is State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. The Seniors SEPP aims to encourage the provision of housing that will: increase the supply and diversity of residences that meet the needs of seniors or people with a disability; make efficient use of existing infrastructure and services; and of particular relevance to this proposal, "be of good design". 9 Clause 4 provides that the Policy applies to land that is zoned primarily for urban purposes and because the above-mentioned residential zones are zones that facilitate urban development in the form of, inter alia dwelling houses, its provisions are therefore relevant. Clause 5 provides that should there be an inconsistency with the Policy and any other environmental planning instrument the Policy prevails. Clause 10 identifies seniors housing as residential accommodation that is or is intended to be used permanently for seniors or people with a disability consisting of, inter alia, a residential care facility (as is here proposed). 10 Clause 11 of the Policy contains specific requirements for a residential care facility including meals and cleaning services, personal care or nursing care, appropriate staffing, furniture and furnishings and equipment. These matters are not in dispute. Clause 32 provides that consent must not be granted to a development application unless the proposed development demonstrates that adequate regard has been given to the Design Principles in Division 2 of the Policy. Relevantly here are the issues of: neighbourhood amenity and streetscape (cl 33); visual and acoustic privacy (cl 34); and solar access and design for climate (cl 35). 11 Also relevant are cll 38, 40 and 48 of the Policy. Clause 38 requires that the development should, inter alia, provide convenient access and parking for residents and visitors. Clause 40 contains a number of relevantly applicable development standards: "the size of the site must be at least 1,000 sq m"; "the site frontage must be at least 20 m wide measured at the building line"; in residential zones (where residential flat buildings are not permitted) "the height of all buildings must be 8 m or less" and "... must not be no more than two storeys in height"; and "a building located in the rear 25% area of the site must not exceed one storey in height". Because both frontages of the site are said not to meet the 20 m minimum site width and the one storey height limit for the rear 25% of the Henson Street lot is exceeded the applicant has provided written objections pursuant to State Environmental Planning Policy No 1 - Development Standards. 12 Clause 48 of the Policy contains standards for a residential care facility that, if complied with cannot be used to refuse development consent. These include: a building height of 8 m or less; a floor space ratio of 1:1 or less; a minimum of 25 square metres of landscaped area per residential bed; and one car parking space for each 10 beds plus one car parking space for each 2 persons to be employed and on duty at any one time plus one parking space for an ambulance.