Land and Environment Court New South Wales Medium Neutral Citation: D & C Consortium Pty Ltd v Burwood Council [2012] NSWLEC 1231 Hearing dates: 13 August 2012 Decision date: 21 August 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Consent Orders, Seniors Living, accessibility Legislation Cited: Burwood Planning Scheme Ordinance State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; Texts Cited: Seniors Living Policy: Urban Design Guideline for Infill Development Category: Principal judgment Parties: D & C Consortium Pty Limited (Applicant) Burwood Council (Respondent) Representation: Solicitors Mr S Kondilios, Maddocks Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10401 of 2012 Judgment 1D & C Consortium sought consent from Burwood Council under Development Application No 196/2011 for the demolition of an existing dwelling house and associated outbuildings and the construction of a part 1 and part 2 storey residential building containing 5 new dwellings, over a basement carpark with 13 off-street car spaces, to be used for seniors housing in accordance with the requirements of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) at 30 Livingstone Street, Burwood. The council refused consent and D&C is appealing that decision. 2The issues between the parties have been resolved and they are seeking consent orders from the Court. Background and the proposal 3The applicant and the council have liaised in relation to the resolution of the contentions in the case following the initial determination of the application that identified the council's contentions and case management in this Court in June. As a result, the parties have agreed to amendments, which, if incorporated into conditions of consent, are said to address those contentions. 4To assist the Court, the applicant has also prepared amended plans that reflect the agreed position. Leave has not been sought to rely on those plans. 5The application proposes the demolition of an existing single storey, brick and tile dwelling house and associated garage and the construction of an in-fill self-care housing development containing 5 units. 6The proposed building has a setback of 8 m (previously 7.5 m) from Livingstone Street at ground level and 10 m at first floor. Two bay windows and an entry portico encroach this setback by 500 mm and 1.6 m respectively at ground level. An upper level balcony extends further within the setback to within 6.3 m of the boundary however, the treatment of this element is the subject of agreed conditions, which would result in the reduction of the balcony and its roof to setbacks of 8 m and 9 m respectively. 7Side boundary setback range from 7.295 m to 10.295 m on the western side of the property and 4 m to 5 m to the east. The rear setback varies from 5.15 m to 6.95 m. 8Vehicular and pedestrian access is proposed along the western side of the site with a 3.4 m wide ramp providing access to a basement carpark. That basement contains provision for 13 car spaces, electrical meter room and individual storage rooms. A lift provides access from the basement to all other levels of the development. 9Five dwellings are proposed. Unit 1, located at the front of the building, is a two-storey dwelling comprising living/dining room, kitchen, laundry, bathroom and one bedroom on the ground floor and a further four bedrooms, study, lounge, TV room and bathroom on the first floor. 10Units 2, 3 and 4 are ground level units and each contain 3 bedrooms, bathroom, laundry, kitchen and living/dining room. 11Unit 5 is located on the upper level in the central portion of the building and is also a 3 bedroom dwelling. 12Each ground level unit would incorporate a private courtyard and a 4 m x 3 m balcony would be provided to unit 5. An area of common open space is proposed in the south-western corner of the site. The majority of trees on the site are to be retained. The site and its context 13The site is located on the southern side of Livingstone Street and has a frontage of 24.995 m, depth of 51.195 m and site area of 1279 sqm. The land falls approximately 0.7 m from the front to the rear boundary and has a cross fall of approximately 1 m from its western boundary. 14A substantial, single storey dwelling house occupies the site setback 10.8 m from the Livingstone Street frontage. Single storey dwelling houses adjoin both side and the rear boundary to the site and two, two storey houses are located opposite. The dwelling is not a listed heritage item under the council's environmental planning instrument and the site is not within a Heritage Conservation area. 15Listed heritage items are located within Livingstone Street at Nos 6, 8, 12B, 5 and 13, all of which are to the east of the site. The planning controls 16The site is zoned Residential A under the Burwood Planning Scheme Ordinance. The development, being a residential flat building and units, not exceeding 2 storeys, for aged persons, is permitted with consent however, the application has been lodged under the provisions of the SEPP. The development is permitted with consent pursuant to the provisions of clause 4 of that policy and is defined as in-fill self-care housing which is seniors housing that consists of self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care. 17Clause 26 of the SEPP requires, before consent can be granted, a consent authority to be satisfied, by written evidence, that residents of the proposed development will have access to a range of facilities. That access must comply with specified grades. 18Part 3 of the SEPP relates to design requirements and clause 30 requires satisfaction that the applicant has taken into account a site analysis prepared in accordance with that clause. 19Clause 31 requires a consent authority to take into consideration, amongst other matter, the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development (SLP) published by the Department of Infrastructure, Planning and Natural Resources in March 2004. 20Clause 32 states that a consent authority must not consent to a development application unless it is satisfied that the proposed development demonstrates that adequate regard has been given to the design principles set out in Division 2 of the SEPP. 21Clause 40 provides development standards that must be met for consent to be granted. Clause 50 lists standards that cannot be used to refuse development consent for self-contained dwellings. The issues 22The contentions in the case are whether: (1)the development complies with the height standard specified in clause 40(4) of the SEPP; (2)the design of the development is appropriate, particularly in regard to the provisions of clauses 25(5)(b)(v), 29(2), 33(c)(i) and (ii) and 33(d) of the SEPP; (3)the development has unreasonable privacy impacts on the adjoining property to the west, No 32 Livingstone Street; (4)pedestrian access to the rear dwelling would adversely impact on the amenity of No 32; (5)the development would be in the public interest. 23The council, on the basis of the amended plans and draft conditions tendered with the proposed consent order, Exhibit 6, did not press contention 1 as the original assessment of the control had not taken into account the definition of height contained in the SEPP. It is agreed that the development would comply with this control. 24With regard to contention 2, Mr Seton, for the council, advises that the changes made to the proposal and the conditions, if adopted, will resolve this contention. Particular changes are the deletion of the gatehouse, the reduction in size of the first floor, front balcony and the extent of its roof and the roof below, changes to materials and finishes and changes to front fencing. The evidence 25The hearing commenced on site and the Court heard evidence from two objectors to the proposal. The first objector was a representative of the owners of an adjoining property and the second, a resident of Livingstone Street. 26The issues raised by these persons are summarised as: * Dwelling has heritage significance and should not be demolished. Would support adaptive reuse; * Development does not comply with the relevant development standards contained within the SEPP, in particular internal accessibility provisions; * No special residential care facilities are being offered by the development; * A proper assessment of how the proposal responds to the characteristics of its site and form and its impact on the streetscape and neighbours has not been undertaken; * The height, bulk and scale of the building is excessive and not in keeping with the adjoining development; * Setback to Livingstone Street will dominate the adjoining properties; * Lack of architectural merit; * Services are difficult to access from the site; * Overshadowing impacts affect amenity of adjoining properties; * Rear units cannot observe street activities; * Intensity of development will adversely affect the privacy and quiet enjoyment of adjoining properties and within the development itself. 27In response to the issues raised by the residents, Mr Seton advises that the draft conditions will ensure that the internal layout of the site is compliant with the relevant SEPP provisions. Those conditions are conditions 10, 11, 17, 26, 33, 47, 108 and 109. 28The Court required the parties demonstrate compliance with those provisions of the SEPP that are pre-conditions for consent to be granted, in particular, addressing the mandatory requirements of clauses 26, 30 and 32. 29Expert evidence was heard from Mr Minto for the applicant and Mr Olsen for the council. They agreed that the development satisfied all relevant development standards contained in the SEPP. 30In regard to the accessibility provisions contained in clause 26, neither party could provide the Court with appropriate written evidence that the site satisfied the gradients specified in that clause. That is despite the fact that the matter had been recommended to the council for approval by its officers. The proceedings were adjourned to allow the applicant an opportunity to provide that evidence. 31There is no dispute that, if those gradients were met, the site would be within 400 m of services and also within 400 m of a bus service that would transport residents to centres that provide those services. The site is also within close proximity to the southern extent of the Burwood Town Centre. 32A gradient survey report was filed with the Court on 16 August 2012. Mr W Davis, a registered surveyor, prepared that report. Mr Davis has undertaken a survey along the centreline of the concrete pedestrian footpath from the site in an easterly and westerly direction to the closest bus stops. 33With reference to clause 26(2)(a) of the SEPP, Mr Davis says: The gradient of the pedestrian concrete pathway from the subject site to the bus stop 254.8m in an easterly direction on Burwood Road complies with the above clause. The overall average gradient is 3.3% which equates to 1:30. The gradient of the pedestrian concrete pathway from the subject site to the bus stop 142.3m in a westerly direction on Conder Street complies with the above clause. The overall average gradient is 2.4% which equates to 1:41.7. 34The experts agree that the site analysis undertaken by the applicant and contained in the Statement of Environmental Effects and supporting plans and documentation satisfies the requirements of clause 30 of the SEPP. 35Particular evidence was provided, as required under clause 31 of the SEPP, in relation to the SLP and how the provisions of that document had been taken into consideration in the design of the development and the subsequent design changes required by the council and detailed in the consent conditions. These changes include the provision of fixed privacy screens to the upper floor balcony to protect the privacy of residents at No 32 Livingstone Street. 36Both experts agree that the development, if built in accordance with the amendments contemplated by the council and detailed in the consent conditions, would also satisfy the requirements of clause 32 of the SEPP. In particular, Mr Olsen says that the desirable elements of the locality's current character go to large setbacks and landscaped settings. Mr Minto agrees and also says that it is important to maintain tree planting/canopies, submitting that the front setback, with the further modifications to the building façade and deletion of the gatehouse, would be consistent with the setbacks of other dwellings in the street. He also says the built form, using face brickwork and tiled roof, generous setbacks to side boundaries and having two storey development on a larger block is consistent with the character of the streetscape. 37The experts agree that the development has been designed to provide adjoining properties with solar access compliant with the council's planning controls and that the units within the development would receive sunlight that accords to that specified in the SEPP. Conclusion and findings 38Having regard to the evidence now before me, which demonstrates the development, subject to the amendments agreed between the parties and incorporated in the consent conditions, is compliant with all of the relevant requirements of the SEPP, I am satisfied that the proposal is lawful and, there being no reason why the consent orders should not be made, by consent, the Orders of the Court are: (1)The appeal is upheld. (2)Development Application No. 196/2011 for the demolition of an existing single storey dwelling house and the erection of a part 1 and part 2 storey residential building containing 5 new dwellings, over a basement carpark with 13 off-street car spaces, to be used for seniors housing in accordance with the requirements of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, on the land at 30 Livingstone Street, Burwood (Lot 2 DP 518781) is approved subject to the conditions in Annexure "A". (3)The exhibits, other than Exhibits A, B, 1 and 6 may be returned. _____________________ Sue Morris Commissioner of the Court ANNEXURE A ********** Amendments 21 August 2012 - D & C "Construction" replaced with "Consortium"Livingstone "Road" replaced with Livingstone "Street" Amended paragraphs: Coversheet, paras 1, 6, 26 and 38 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: 23 August 2012