B'nai B'rith Retirement Villages Limited v Waverley Council [2015] NSWLEC 1575

Land and Environment Court New South Wales

Medium Neutral Citation: B'nai B'rith Retirement Villages Limited v Waverley Council [2015] NSWLEC 1575 Hearing dates: 14 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph [33] Catchwords: APPEAL - development application for alterations and additions to an existing retirement village – whether the development is of an appropriate scale and character – parking and traffic concerns Legislation Cited: Land and Environmental Court Act 1979 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 65 – Design Quality For Residential Flat Development Waverley Local Environmental Plan 2012 Waverley Development Control Plan 2012 Category: Principal judgment Parties: B'nai B'rith Retirement Villages Limited (Applicant) Waverley Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Mr S Patterson (solicitor)(Respondent )

Solicitors: Hones Lawyers (Applicant) Wilshire Webb Staunton Beattie Solicitors (Respondent) File Number(s): 2016/152834

ex tempore Judgement 1. The Applicant is the owner of a retirement village at 7-11 Princess Street, Rose Bay. It appeals pursuant s97 (1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) following the Council's refusal of its development application (DA 267/2015) and seeks consent to carry out alterations and additions to that development in accordance with an amended proposal. 2. The amended application was developed during the s34 conciliation conference which I facilitated between the parties, and ultimately at their request terminated in order to list this appeal for hearing. 3. The amended application includes: 1. the demolition of an existing two storey dwelling house and associated structures at 13 Princess Street; 2. the consolidation of the land at 13 Princess Street with the land at 7 to 11 Princess Street to create a single allotment ( the Site ); and 3. the construction of six independent living units within a new part one /part two storey building designed in accordance with the architectural drawings prepared by the Laurie Liskowski Architect (Exhibit A).The amended plans change the original application by: * a reduction in the independent living units from 13 to 7 units ; * removal of the third storey of the development and the rooftop terrace which substantially breached the 8m height control under State Environmental Planning Policy (Housing for Seniors or people with A Disability) 2004 (SEPP SL) and unreasonably impacted upon the district and water views available from adjoining properties to the east; * the introduction of a roof garden between building 1 B and building 2 over the existing car parking area; thereby softening the design when viewed from the higher properties to the east and reducing the bulk and scale of the development; * an increased side boundary setback on the eastern elevation from 1.2m to 3m and a consequent improvement in the separation between the development and the adjoining residential properties particularly, the private open spaces of the ground floor residential apartments in Gilbert Street and, the rear yard of the adjoining dwelling at 15 Princess Street; * new finishes/cladding to the façade of the development to add architectural interest and to soften the length of built form; * a variety of window treatments to improve solar access to the units of the development ; * articulation of the building form to break up its vertical length, particularly when viewed from the east; * the removal of the originally proposed car parking spaces at the street frontage which had taken away existing street parking spaces. 1. Following assessment the Council is now satisfied that a conditional approval of the development should be granted. The Council joins with the Applicant in requesting the Court to make consent orders granting the development consent, subject to the conditions (Exhibit 2). 2. Notwithstanding the agreed position of the parties, I am required to be satisfied that it is appropriate to make the orders sought. In considering the proposed consent orders, the Court's Practice Note – Residential Class I – Development Appeals (the Practice Note) provides I must consider any submission made by an objector to the proposed orders. In accordance with the Practice Note, by letters dated 11 October 2016 and 4 November 2016 the Council's solicitor notified those persons who had objected to the original proposal of the proposed consent orders and the agreed conditions of consent. The letters 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.