Land and Environment Court New South Wales Medium Neutral Citation: Cranbrook Care RACF Pty Limited v City of Canada Bay Council [2014] NSWLEC 1232 Hearing dates: 11, 12 August 2014 Decision date: 21 August 2014 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)Development application number 197/2013 seeking approval of the residential aged care facility at 65-71 St Albans Street Abbotsford (lots 34, 35, 36 and 37 in DP 5186) is approved, subject to the conditions set out in annexures A and B. (3)The variation under State Environmental Planning Policy No 1 Development Standards and cl 4.6 of the Canada Bay Local Environmental Plan 2013 is upheld in relation to: (a)the variation in the 8 m height development standard under cl 40(4)(a) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; and (b)the variation to the two-storey height development standard under cl 40(4)(b) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. (4)Each party pay its own costs. (5)The Court notes that the order made on 10 April 2014 that the applicant pay the respondent's s 97B costs, as agreed or assessed. Catchwords: Development application - residential care facility - pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability ) 2004 - permissibility - location and access to facilities - view impacts - consent orders Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 Canada Bay Local Environmental Plan 2008 Cases Cited: Benevolent Society v Waverley Council [2010] NSWLEC 108 Blakely v Mosman Municipal Council No 2 [2013] NSWLEC 100 Category: Principal judgment Parties: Cranbrook Care RACF Pty Limited (Applicant) City of Canada Bay Council (Respondent) Representation: Mr C McEwen with Ms A Hemmings (Applicant) Mr S Patterson (Respondent) Corrs Chambers Westgarth (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10828 of 2013 Judgment Introduction 1COMMISSIONER: This is an oral judgment in respect of consent orders proposed by the parties in relation to a development application for a 'residential care facility' at Abbotsford. 2The application is made pursuant to the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP). 3Notwithstanding the agreed position between the parties, I am required to be satisfied that it is appropriate to make the orders requested by them. In considering the consent orders, the Court's Practice Note, Class 1 Development Appeals, provides that I must consider any submissions made by an objector to the consent orders. The Council has notified the proposed consent orders, together with the proposed conditions of consent by letter dated 1 August 2014 to persons who had objected to the original proposal. The letter gave notice of the date of the hearing before the Court to consider the making of the proposed consent orders and invited any interested person to be heard at that time. 4A number of objectors accepted the Council's invitation to address the Court at the commencement of the onsite hearing. They included a spokeswoman from the local action group, The Abbotsford Residents' Group (TARG), which was set up in response to the original application and, Mr Burton, whose property is located opposite the driveway to the development's basement car park. At that time the Court also inspected several of the objectors' properties to better appreciate their evidence about view impacts. In addition to the oral evidence the Court considered the written submissions received by the Council in respect of the original application and the amended proposal (including the town planning report prepared by Mr Turisi on behalf of TARG (Exhibits 3, 4, 5 and 6). 5Before I deal further with the objectors' concerns it is appropriate to set out my understanding of the facts which is based on the Council's statement of facts and contentions (Exhibit 2). The site 6The site is at 65-71 St Albans Street, Abbotsford (the site). It has an irregular shape and is comprised of four residential allotments. The total site area is 4,251.4 m2. 7It is located on the south-western side of St Albans Street, Abbotsford between the intersections of Gow and Charlton Streets, Abbotsford. Surrounding development is mixed as St Albans Street forms the interface between the R2 and R3 residential zone boundary under the Canada Bay Local Environmental Plan 2008 (the LEP). 8The site is bounded on its western side by Hen and Chicken Bay. To the east is a three story residential flat building (which is located within the R2 medium density residential zone) and to the north of the site is a 'sewerage pumping station' that is listed as a heritage item under the LEP. To the south are two residential dwellings. Zoning and permissibility 9The site is within zone R2, low density residential, and 'seniors housing' is prohibited development. However, the proposed development is permissible pursuant to cl 4(1) of the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (SEPP) because a 'residential care facility' is permissible as the R2 zone permits 'dwelling houses'. The development appeal 10The applicant, Cranbrook Care RACF Pty Ltd, has appealed the decision of the Sydney Joint Regional Panel (JRPP) to refuse its development application for the construction of a 'residential care facility' on the site. 11The JRPP was the determining authority for this development application (DA 197/13) because the development was assessed as having a capital investment value of more than $20 million - Schedule 4A of the Environmental Planning and Assessment Act 1979 (the Act). 12The appeal is made under 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) and the Canada Bay Council is the respondent to the appeal. 13On 12 December 2013 the Council filed its statement of facts and contentions. 14On 19 February the Court directed the parties to participate in an onsite s 34 conciliation conference and, following a further conciliation, the conference was terminated on 1 April 2014. 15On 10 April 2014 the Court granted leave to the applicant to rely upon amended plans and supplementary reports. 16After notification of the amended application and a consideration of the submissions received from the objectors the Council assessed the proposal and determined that the amended application was acceptable subject to conditions. 17On 15 July 2014, the Council resolved to proceed to consent orders hearing. 18The parties now apply to the Court for orders to be made in accordance with the draft consent orders, marked (Exhibit 2). The amended application 19The amended application was assessed by the Council's planner, Mr Lettice (Exhibit 5). Following a consideration of the supplementary information and reports including: the additional material from Enstruct about stormwater disposal (in particular the issue of basement waterproofing and the revised catchment area), the further view loss analysis by Dr Lamb (refer to Richard Lamb Associates report Addendum dated 7 March 2014) and (Exhibit H), Mr Pindar's review of the amended proposal, Mr Maguire's survey data and the new SEPP 1 objections/cl 4.6 variations relating to amended plans the report concludes that the amended application satisfactorily addresses each of the contentions raised by the Council. 20The Council's planner identifies the following positive changes to the design: * a greater articulation of the façade of the building to respond to streetscape and view loss contentions, * increased setbacks to Charlton Street to enable retention of existing vegetation and retention of trees numbered 43, 44 and 48, * a reduction in the height of the roof and removal of the stepped ceiling on the western wings of the upper level of the building, * appropriate relocation of utilities on the roof to minimise visual impacts, * design changes to improve solar access both internally and externally to the courtyard associated with the dementia care unit, * amendments to building's form to reduce its impacts on trees, * a redesign of the access to and layout of the basement car parking areas of the development and, increased landscaping. Objectors' concerns 21Despite the Council's assessment the objectors who addressed the Court do not accept the amended proposal. They hold the view that their original objections to the development have not been satisfactorily resolved by the amended application. In short they remained concerned about: the bulk and scale of the development; its traffic impacts on the local road network; removal of on street parking; loss of views from surrounding properties and from the public domain; flooding/groundwater impacts for the proposed basement car park; traffic noise; light spillage from cars entering and existing the car park; a general loss of amenity within the neighbourhood and vegetation loss. 22Perhaps the most affected residence - in terms of traffic impacts, is the property at 1 Charlton Street, owned by Mr and Mrs Burton. It is situated opposite the driveway to the development's basement car park. Mr Burton, gave oral evidence at the commencement of the hearing on behalf of his family. He told me that he was very concerned about the noise and headlight glare generated by cars/trucks using the driveway particularly, at night. 23Mr Burton wants the car park driveway relocated further up Charlton Street and nearer to his neighbour at 63 St Albans who does not object to its relocation opposite her residence (Exhibit 7). 24The parties' traffic experts and the Council's engineer Mr Lau spent some time discussing a possible relocation of the driveway away from the area opposite the Burtons' front entry and kitchen and family room windows. Ultimately, however the Council's engineer and applicant's experts agreed that the basement entry point for the development was appropriately located at the lowest point on the site. They also agreed that given the grade of the car park driveway any light spillage from car headlights would be angled away from the Burton's residence. In fact they expressed the view that given the gradient of the proposed driveway it current location was likely to cause less light spillage for the Burtons property than if the driveway was moved opposite to 63 St Albans Street (Exhibit F). 25In an attempt to further ameliorate any light spillage the applicant proposes a pedestrian path with trees along the northern frontage of the Mr Burton's property. Mr Burton, however, did not want this because he believes that landscaping will interfere with his existing natural light. He also believes that street planting is impractical given the width of the council reserve along that frontage and the services within it. 26Apart from street planting the applicant has also offered to install window treatment to the northern façade of the Burton's residence. In particular, angled louvers affixed to the exterior of the windows or blinds to the interior of the northern windows of the Burton residence. Again, Mr Burton declined the offer. Although he did agree with the imposition of a condition which restricted deliveries to the basement car park area and waste collection before 7am or after 6pm (draft condition 86). 27With respect to the residents' concern about changes to the existing onstreet parking arrangements in St Albans and Charlton Streets and loss of street parking the traffic experts told me that there will be a loss of three car parking spaces on the northern side of Charlton Street but three spaces will be gained in St Albans. The application also proposes a 'no stopping zone' at the Charlton Street/St Albans Street intersection (draft condition 19) and subject to the Council's Traffic Committee approval and the implementation of a 12 m limitation of 'No Parking' along the northern side of Charlton Street and 'No Stopping' signage on both sides of Charlton Street for 10 m from the intersection with St Albans. While the applicant's traffic expert, Mr Rogers and the Council's expert Mr Pindar did not think the changes are necessary the Council was of the opinion that they were appropriate. 28With respect to view impacts caused by the development I am satisfied based on my inspection of the properties concerned and Dr Lamb's visual assessment evidence that on balance any impacts complained of are minor and acceptable on the evidence. Most properties I inspected had uninterrupted views over the site to the water and were largely unaffected by the proposal. The change to the roof design no doubt has improved any real issue in respect of view loss. 29In ultimate the parties' experts collectively expressed the view that the objectors' concerns were satisfactorily addressed by the amended plans and proposed conditions of approval. In those circumstances I must accept the overwhelming opinion of the parties' experts that the objectors' concerns are not a proper basis on which to refuse this amened application. Permissibility 30In order to be permissible, the development must comply with cl 26 of the SEPP. The clause provides: Location and access to facilities 26 Location and access to facilities (1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to: (a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and (b) community services and recreation facilities, and (c) the practice of a general medical practitioner. (2) Access complies with this clause if: (a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or (b) in the case of a proposed development on land in a local government area within the Sydney Statistical Division-there is a public transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development at least once between 8am and 12pm per day and at least once between 12pm and 6pm each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the public transport services to the facilities and services referred to in subclause (1)) complies with subclause (3), or (c) in the case of a proposed development on land in a local government area that is not within the Sydney Statistical Division-there is a transport service available to the residents who will occupy the proposed development: (i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and (ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and (iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive), and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3). Note: Part 5 contains special provisions concerning the granting of consent to development applications made pursuant to this Chapter to carry out development for the purpose of certain seniors housing on land adjoining land zoned primarily for urban purposes. These provisions include provisions relating to transport services. (3) For the purposes of subclause (2) (b) and (c), the overall average gradient along a pathway from the site of the proposed development to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) is to be no more than 1:14, although the following gradients along the pathway are also acceptable: (i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time, (ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time, (iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time. (4) For the purposes of subclause (2): (a) a "suitable access pathway" is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and (b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway. (5) In this clause: "bank service provider" means any bank, credit union or building society or any post office that provides banking services. 31The parties engaged a single expert surveyor, Mr McGuire, to assess the distance and gradient of the path to the bus stop in Abbotsford Parade. Mr McGuire concludes, in his evidence, that (a) the distance of the path of travel to a public transport service complies with the 400 m requirement in cl 26 of the SEPP; and (b) compliance with the SEPP with respect to the maximum gradient of the path of travel to the public transport service can be achieved with minor footpath works. 32The applicant has lodged an application under s 138 for approval to carry out the minor footpath works in Abbotsford Parade. The Court, having walked that path of travel - from the site to the bus stop - appreciates the distance and the minor works proposed. The Council accepts the Court appointed surveyor, Mr McGuire's assessment about travel distance and, considers the amended proposal permissible in respect of travel distance to a public transport. As the Council is the roads authority under the Roads Act 1993 in this case in and the applicant has lodged an application with the Council for the proposed infrastructure works under the Roads Act the Court has jurisdiction to approve the works under the Act. 33Based on my own observations at the view and Council being satisfied that the works proposed in Abbotsford Parade respond to the findings of the party's single expert, Mr McGuire, and that the council's engineers are satisfied with the revised proposal meeting the engineering standards. I consider it appropriate to approve the s 138 application lodged by the applicant in this appeal based on the reasoning of the Court in Blakely v Mosman Municipal Council No 2 [2013] NSWLEC 100 per Craig J at paras 56 to 60. I also note that the proposed conditions of the consent also ensure compliance with cl 26 of the SEPP with respect to the footpath works. 34Having resolved the issue about cl 26, I am satisfied on the evidence that the requirement in the SEPP has been met and contention 1 has been resolved. I am also satisfied, based on the evidence of Mr Lettice in his report dated 7 August 2014, Exhibit 5, that the amended plans, which increase the setback of the building from the southern boundary of the site and thereby enable retention of existing vegetation to this elevation, the dropping of the roof form of the development in three sections and setback of the main entry to provide greater articulation of the façade, reduce the bulk and scale of the original proposal that on its merits the application is acceptable . 35The stepped ceiling depicted on the original plans to the western wings of the upper level of the building have been removed and the SEPP 1 objection/cl 4.6 objection submitted by the applicant to address the resulting non-compliance in respect of the 8 m ceiling height provision in cl 40(4)(a) of the LEP, as well as the two-storey height limit, cl 40(4)(b), is according to the Council's planner Mr Lettice well-founded because despite the minor numerical non-compliance the underlying objectives of the clause are still achieved. The SEPP 1 objection /cl 4.6 variation is also supported by the expert evidence of Ms Morrish and Dr Lamb. 36The details of the SEPP 1 objection are summarised in the statement of the evidence of Ms Higgins, (Exhibit J). She also believes that the underlying objectives of cl 40 4(a) and (b) are achieved, notwithstanding the minor noncompliances with the height and storeys development standards. The underlying objective are: (a) to ensure an appropriate bulk and scale for the development; (b) to provide compatibility with the adjoining residential neighbourhood; (c) to safeguard visual privacy of the neighbouring dwellings and; (d) to minimise impacts on views, existing sunlight access and overshadowing of neighbouring dwellings and open spaces areas. Ms Higgins expresses the opinion that the proposed development achieves the underlying objectives notwithstanding the minor non compliances with the height and storeys development standards. She states (at [9] of Exhibit J): The primary street frontage does not result in any abrupt change to the streetscape and is compatible with the adjoining neighbourhood. This is evidenced by the fact that the minor height and storey noncompliances is not visible from St Albans Street frontage. The development is fully compliant with cl 48(b), (c) and (d) in relation to bulk scale landscaping and parking. The amenity of the public domain is preserved as public views to the river and the surrounding areas are retained and visual privacy, sunlight access is retained whilst minimising overshadowing and impacts of the development on views has been assessed by Dr Lamb as mild to moderate and, in some cases, an expansion of views for those opposite. 37Ms Morrish's planning assessment report, (Exhibit G), also supports a variation of the standards under cl 4.6 Exceptions to Development Standards. She discusses her reasoning at [4 and 5] of her report. In her assessment the numerical non-compliance with the height and storey standards has no adverse impact on the views for the properties opposite the site based on Dr Lamb's visual assessment. The three-storey component is at the rear of the development fronting the water and does not impede views. Also, the utilities on the now pebbled roof are depicted on the plans as being located in the southern component of the building to minimise visual impact. 38Having had the opportunity to inspect the view impacts from the objectors' properties who allowed access and lived opposite the site in St Albans Street I accept Dr Lamb's visual assessment and his conclusion that the minor non-compliances with the height and storey development standards do not adversely impact on views across the site to the water. Based on the evidence of council's Mr Lettice and the parties' planners and Dr Lamb, I accept their assessment that compliance with the standards in cll 40(a) and (b) are not necessary or reasonable in this case because the underlying objectives of the clause are achieved. 39The applicant relies on the needs assessment for the proposed development prepared by Mr Lette of Social Impact Strategies, dated May 2013 (at exhibit A, volume 2, tab 3, 5). Relevantly, the report identifies a shortfall in aged care services in the area and concludes that the proposed development provides essential extra care services for dementia aged care and respite care. I accept the applicant's submission that the social desirability and local community demand for such accommodation is a relevant consideration as part of the public interest under s 79C of the Act: Benevolent Society v Waverley Council [2010] NSWLEC 108, at [61], referring to Terrace Towers Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195. 40Accordingly, the perceived impacts of the development need to be balanced against the broader public interest of an aged care facility on this site. The expert evidence provided to the Court supports the Council's assessment that the amended proposal is acceptable on its merits after a consideration of the relevant matters in s 79C of the Act, including, as I have discussed, the concerns raised by the objectors to these consent orders. Conclusion 41Accordingly, for the reasons outlined I am satisfied on the evidence that it is appropriate to grant development consent to this application subject to the conditions in Annexure A in accord with the parties' proposed consent orders. 42The Court orders: (1)The appeal is upheld. (2)Development application number 197/2013 seeking approval of the residential aged care facility at 65-71 St Albans Street Abbotsford (lots 34, 35, 36 and 37 in DP 5186) is approved, subject to the conditions set out in Annexures A and B. (3)The variation under State Environmental Planning Policy No 1 Development Standards and cl 4.6 of the Canada Bay Local Environmental Plan 2013 is upheld in relation to: (a)the variation in the 8 m height development standard under cl 40(4)(a) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; and (b)the variation to the two-storey height development standard under cl 40(4)(b) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. (4)Each party pay its own costs. (5)The Court notes that the order made on 10 April 2014 that the applicant pay the respondent's s 97B costs, as agreed or assessed. Susan Dixon 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. Decision last updated: 07 November 2014