clause 4.6 variation height of buildings

16 March 2017 Ref: LDA 2016/0495_Clause 4.6 Variation

Clause 4.6 Variation – Height of Buildings

Proposed Partial Demolition of an Existing Residential Care Facility and Construction of a Four Storey Seniors Living and Residential Care Facility containing 116 Residential Care Facility Beds, 21 Independent Living Units and associated Parking, Kitchen, Laundry, Gardens, Café and Activity Areas.

Calvary Ryde Retirement Community

678 Victoria Road, Ryde

(Lot 1012 DP836977)

Prepared by Willowtree Planning on behalf of the Little Company of Mary Health Care Ltd (Calvary)

March 2017


Part Demolition of Residential Care Facility and Construction of 4 Storey Seniors Living and Residential

Care Facility comprising of 116 Residential Care Facility Beds and 21 Independent Living Units at

678 Victoria Road, Ryde (Lot 1012 DP836977)

2

1. Introduction

This Clause 4.6 Variation request has been prepared in support of the development application for the

development including;

▪ Demolition of Part of an existing Residential Care Facility (Mary Potter Nursing Home);

▪ Construction of a 4 Storey Seniors Living and Residential Care Facility comprising of;

o 116 Residential Care Facility Beds;

o 21 Independent Living Units; and,

o Associated Carparking, Gardens, Kitchen, Laundry Café and Activity Areas.

The application is made under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors). The proposed building exceeds the relevant height provision in Clause

40 of SEPP Seniors.

This Clause 4.6 Variation has been prepared in accordance with the requirements of Clause 4.6 of the

Ryde Local Environmental Plan 2014 (RLEP). Clause 4.6(2) outlines that;

Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

In accordance with Clause 1.9 of the RLEP, State Environmental Planning Policy 1 – Development

Standards (SEPP 1) does not apply, the variation to the control is made under Clause 4.6 of the RLEP.

It is understood that in accordance with Section 36 of the Environmental Planning and Assessment Act 1979 it could be argued that SEPP 1 would override Clause 4.6 of the RLEP. Despite this potential

conflict, a legal statement from Norton Rose Fullbright is provided in Appendix 18 to the application.

This legal opinion provides examples of where both Clause 4.6 and SEPP 1 mechanisms have been used

to justify variations to controls in SEPP Seniors. In light of this, the proposal requests a Clause 4.6 of

the RLEP variation to height controls in the SEPP Seniors in this report. A further objection to the height

controls in the SEPP Seniors in accordance with SEPP 1 is provided in Appendix 12 of the Application.

Clause 4.6 of the RLEP has the following aims and objectives:

(a) to provide an appropriate degree of flexibility in applying certain development standards to

particular development, (b) to achieve better outcomes for and from development by allowing flexibility in par ticular

circumstances. The proposed variations to development standards for the proposed development are in relation to

Clause 40 Development Standards – minimum sizes and building height of the SEPP Seniors. In summary

the following variations are proposed:

SEPP Seniors Clause SEPP Seniors Development

Standard

Proposed Development Non Compliance

Clause 40(4) Height in zones where residential flat buildings

are not permitted

8m

The proposal seeks development consent for a

building height up to 16.414m





3

In accordance with Clause 4.6 of the RLEP Council is required to consider the following:

Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

a) that compliance with the development standard is unreasonable or unnecessary in the

circumstances of the case, and

b) that there are sufficient environmental planning grounds to justify contravening the development standard.

The proposal is supported by demand for the provision of Senior Housing in NSW. The site currently

provides significant aged care and accommodation for the elderly and disabled in the community. This

service is becoming more essential as population grows and the dominant demographic skews to

persons over 55 years of age. The current facilities are unable to meet current demand and provide the

service of a modern facility. The site is underdeveloped when compared with the surrounding locality.

Adjoining buildings and site’s located opposite the subject site are afforded heights up to 21.5m. The

proposal has designed a facility that provides a modern building of a scale that is complimentary to the

surrounding intended character and is sympathetic to the existing nature of the subject site. The

proposal is a positive outcome for the site and the community.

This request has been prepared in accordance with the aims and objectives contained within Clause 4.6

and the relevant development standards.





4

2. The Standards Being Objected to

2.1 Clause 40 Development Standards – minimum sizes and building height of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

The development standard being requested to be varied is Clause 40 Development standards –

minimum sizes and building height of the State Environmental Planning Policy (Housing for Seniors or People with a Disability ) 2004 (SEPP Seniors). Subclause (4) specifically applies to the sites is

contained in a zone in which Residential Flat Buildings are not permitted. Subclause (4) specifically

states;

(4) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less, and

Note. Development consent for development for the purposes of seniors housing cannot

be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a).

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and

Note. The purpose of this paragraph is to avoid an abrupt change in the scale of

development in the streetscape.

(c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

Pursuant to Clause 40, the proposed development seeks exception to the 8m/2 storey building height

standard as identified above.

The site is zoned R2 Low Density Residential under the provisions of the RLEP where dwellings are

permitted with development consent. This constitutes a site zoned for Urban Purposes in accordance

with SEPP Seniors. In this instances, in accordance with SEPP Seniors, Seniors Housing is Permitted with

Consent.

This development application relies upon what is reasonably concluded to the underlying objectives of

the standard and the SEPP Seniors.

2.2 The objectives/underlying purpose of the clause A key determination of the appropriateness of a variation to a development standard is the proposal’s

compliance with the underlying objectives and purpose of the development standard. Therefore while

there is a specified numerical control for height of buildings, the objectives and underlying purpose

behind the development standard are basic issues for consideration in the development assessment

process.

Section 3 of this Clause 4.6 Variation addresses the proposed variation to the Clause 40 development

standard.





5

2.3 Proposed variation to standards

The proposed development seeks the construction of a Seniors Housing and Residential Care Facility.

The proposed development will result in the creation of a building with a maximum height of 16.414m

which results in a breach of 8.414m under Clause 4.0 of the SEPP Seniors.

The breach in height is facilitated by the creation of a four storey development plus basement. The

development is situated on a sloping portion of the site, which facilitates variations in overall height

above ground level. The front of the building is 15.5m above ground level. It is only the rear of the site,

where access to the basement is located above ground level that the height of the proposal is 16.414m.

Figure 1 Elevation of building frontage

Figure 2 Elevation of rear of building - where basement is above ground level





6

3. Proposed Variation to Clause 4.3 Height of Buildings

Pursuant to Clause 4.6 of RLEP, we hereby seek exception to the 8m ad 2 storey building height standard

applicable in accordance with Clause 40 of the SEPP Seniors Living. Clause 4.6(4)(ii) requires that such

a request must establish that the proposed contravention is consistent with the objectives of the

standard and the zone.

3.1 Objectives of the standard? The objectives the Development Standards in Part 4 of the SEPP Seniors are expressed as Design

Principles. Design Principles within Clause 33 that apply specifically the Neighborhood amenity and

streetscape include;

(a) recognise the desirable elements of the location’s current character (or, in the case of

precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and

(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

(c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site’s land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent

development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary

walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but

not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in

the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone

The proposal is located adjacent to the site’s eastern boundary. The development adjoining the subject

site to the east contains significant scale of development. The development of the adjacent site is

identified as the Putney Hill development. The Putney Hill development is identified as part of Major

Project approval 05_0001 for;

Rehabilitation and Disability Facility, Residential Development, Landscaped Public and Private Open Space and Associated Services and Infrastructure

The Major Project approval 05_0001 was a concept plan approval which identified buildings adjoining

the subject site’s eastern boundary for 5-8 storey apartment buildings. The relevant portion of the

approval that adjoins the subject site’s eastern border is identified as Residential Development Stage 1,

Phase 2. Subsequent application for Stage 1, Phase 2 have been Approved by Council over this area

for;

▪ LDA2012/0471 - Construction of a residential flat building consisting of 8 residential storeys and containing 91 apartments (10 x 1 bedroom, 73 x 2 bedroom, 8 x 3 bedroom). The proposal also includes the construction of 16 two storey semi-detached dwellings fronting onto an internal road (Road 12) which is to be constructed as part of the proposed development. A total of 146 parking spaces will be provided on the site for the proposed development.

▪ LDA2013/0165 - Construction of 3 residential flat buildings consisting of 218 apartments (19 x 1 bedroom, 171 x 2 bedroom, 16 x 3 bedroom and 12 x dual key apartments). A total of 305





7

car parking spaces will be provided on the site for the proposed development. The development also involves associated landscaping and public domain works.

Figure 3 Subject site in relation to adjoining Residential Flat Building taken from Victoria Road

The site has utilised this adjoining development as a reasonable indication of the intended character for

the locality.

The site itself contains sensitive land uses in the form of existing Seniors Housing. These dwellings are

scattered throughout the premises, amongst gardens. The Survey Plan in Appendix 3 shows the

existing buildings. Located at the top of the site are Dalton House and the Xavier Apartments, which

also provide Seniors Housing. These buildings are well in excess of the 8m height restriction under the

SEPP Seniors and the 9.5m height limit under the RLEP for the site. Both buildings are in excess of 12m

in height. The Dalton House building is the highest on the site at RL63.81m.

Figure 4 Snapshot of Site Plan

Adjoining Putney Hill

Development





8

The proposal has been sited with regard to the existing site constraints, whilst maintaining significant

landscaped areas. The proposal will enhance the existing open space provided within the site by

including demolition of part of the Mary Potter Nursing Home. This will open up the sight lines to Dalton

House across Hyson Green, recognising the heritage significance of the building.

As demonstrated in the shadow diagrams submitted with the proposal, the development does not

adversely impact of surrounding development or the public domain in relation to daylight access.

3.2 Objectives of the zone

The site is currently zoned R2 Low Density Residential under the RLEP. The proposal for Seniors Living

and Residential Care Facility is permitted in accordance with SEPP Seniors. The proposal is able to

demonstrate consistency with the R2 Low Density Residential zone objectives which state;

▪ To provide for the housing needs of the community within a low density residential environment.

▪ To enable other land uses that provide facilities or services to meet the day to day needs of residents.

▪ To provide for a variety of housing types

The proposal is consistent with the objectives of the zone as it provides for a housing product that

meets the needs of a growing demographic in the community, being elderly and people with a disability.

The proposal compliments the established uses on the site and represents the redevelopment of part

of the site to provide enhanced services in a modern facility.

The site currently exhibits a low rise, low density built form. The site contains gardens and plantings

throughout. This is juxta-positioned with the large Residential Flat Buildings of up to 8/9 storeys directly

adjoining the site’s eastern boundary. The proposal represents the logical development of the site to

reflect the intended character of the locality.

3.3 Establishing if the Development Standard is Unreasonable or Unnecessary

Compliance with the 8m height and 2 storey standard within Clause 40 of the SEPP Seniors would be

unreasonable given the;

▪ Height of existing buildings on the site;

▪ The siting of the proposal in relation to existing buildings and surrounding uses; and,

▪ The existing character of the surrounding locality.

The site currently has buildings on the site that exceed the current controls. This is provided by Dalton

House and the Xavier Apartments, which are located in the centre of the site. These buildings are located

at a higher point on the site and provide for buildings over 12m in height. The highest point of Dalton

House is provided on the Survey Plan in Appendix 3 at RL63.81m. The proposed building has a final

height of RL59.114m, ensuring that the proposed building will not be the highest point on the site.

The proposed variation provides a better planning outcome as it supports a density that is appropriate

for the site, is in accordance with public demand and is commensurate with the surrounding building

form. The proposal results in a density that accords with the controls of SEPP Seniors and the R2 Low

Density Residential zone of the RLEP, 0.5:1. The provision of this type of housing is in response to the

demand for these services on the site, considering the age of the existing facilities on the site and the

inefficiencies with operating Residential Care Facility across several buildings. The Plan for a Growing Sydney also further highlights the greater demand for services to address an aging demographic. The

development also provides the logical progression of building form given the surrounding development,

particularly on the adjacent Putney Hill site.





9

The proposal is able to meet the objectives of the SEPP Seniors and the R2 Low Density Residential

zone of the RLEP. A range of facilities are able to be sited within the single building to ensure the

efficient provision of housing and care. In ensuring the proposal contains a range of different facilities

for Seniors Housing on the site the proposal creates housing located and designed for seniors who are

independent, mobile and active as well as those who are frail, which specifically aligns with the

objectives provided in Clause 14 of the SEPP Seniors. In facilitating the provision of a variety of housing

that meet the needs of the community, the proposal advances the objectives of the R2 Low Density

Residential zone of the RLEP.

Figure 5 Snapshot of Perspective Drawing 8 prepared by Boffa Robertson Group

The building has been sited at a lower portion of the site to ensure the building height is not dominant.

The siting of the building at the fringe of the existing buildings within the site ensures that the internal

open space and low density nature is maintained. Existing and proposed landscaping will afford

screening of the development. The surrounding mature trees are of a height that exceeds the proposed

height of the building.

Sites surrounding the subject site have been identified within the Ryde Local Environmental Plan 2014 for building heights well in excess of that afforded to the site. The buildings to the east are identified

as having a maximum height of 21.5m, whilst building located opposite Victoria Road are afforded a

maximum height of 15.5m. The site has not been considered in the context of the surrounding

development. The logical progression of height on the subject site should therefore represent a similar

scale to that of these surrounding developments.

Highest point of the site – Dalton

House RL63.81m

Development highest point RL59.114m





10

Figure 6 Land Zoning Map - Sheet_006 (RLEP 2014)

The location and scale of the building has also considered the adjoining Putney Hill development to the

east. The design of the building has ensured there will be no unreasonable overshadowing by providing

significant setbacks. The scale of the development of Putney Hill will ensure the proposal is not out of

character.

In determining a suitable height of buildings on the site, the logical progression of development in the

Victoria Road corridor has been considered. The proposal has utilised the bulk of the buildings adjoining

the site to the east. Massing Diagrams prepared by Boffa Robertson Group describes the relationship

between the adjoining built form and the proposal (see Perspective Plans in Appendix 4).

The proposal provides significantly less mass when compared with the adjoining Putney Hill

development (see Figure 7 below). The proposal has ensured that the adjoining development will

maintain adequate solar access between the hours of 9am and 3pm as described within the Shadow

Diagrams prepared by Boffa Robertson Group in Appendix 4.

Figure 7 Snapshot of Perspective Drawing 7 prepared by Boffa Robertson Group

Approx. building location





11

The abovementioned justification is considered valid and in this instance the proposed variation is

considered to be acceptable. The proposed development will integrate with the existing built form of

the area whilst providing aged care service and accommodation to elderly and disabled. The scale, form

and design of the development will provide a positive outcome for the site and streetscape. A high level

of amenity will be preserved to adjoining sites and within the site itself. The objectives of the relevant

clause and R2 zone will be upheld as a result of the proposal.

3.4 The development is in the Public Interest

The proposed development is considered to be within the public interest. The proposal addresses

existing and future demand for facilities, provides an outcome for the site that is in accordance with the

Objectives of the SEPP Seniors and the R2 Low Density Residential zone and provides a built form that

represents the orderly economic redevelopment of the land.

As previously outlined the development addresses the demand within the site for the provision of a

more efficient and modern facilities to services existing and future residents. Currently the provision of

Residential Care Facilities is administered across the Marian Hostel and Mary Potter Nursing Home

buildings. There are significant inefficiencies with operating services across these various buildings. This

is compounded by the existing Mary Potter Nursing Home being at the end of operational life. The

proposal has considered the impact on existing services provided within the site and has sited and

designed the proposal to ensure optimum provision of care in a location that provides minimal disruption

and impact on buildings that contain existing operational life. The demand for services is further

reflected by an aging population and the need to maximize benefits of existing facilities in accordance

with the Plan for a Growing Sydney.

The proposal reflects the objectives of the SEPP Seniors and the R2 Low Density Residential zone by

ensuring the facility provides a mixture of housing opportunities available to the community. The

proposal assists in ensuring a mixture of housing products to the community that reflect the diverse

needs.

The built form has responded to impact and integration with existing development on the site. The scale

of the development has ensued the efficient delivery of a diverse housing product that integrates wi th

the dominant form of development on the adjoining land.

By addressing existing and future demand for these services, providing a proposal that reflects the

Objectives of the R2 Low Density Residential zone of the RLEP and SEPP Seniors and ensuring the

building form integrates with existing buildings on the site and surrounding locality, the proposal has

established it has been provided in accordance with the public interest.

3.5 Sufficient Environmental Planning Grounds to Justify Contravening the Development Standard

The variation to the development standard for height of buildings is considered well founded because,

notwithstanding the proposed non-compliance with this standard:

• The proposed development is entirely consistent with the underlying objective or principles of

the standard as demonstrated in SEPP Seniors.

• The objectives of the R2 Low Density Residential zone are reflected by the proposal.

• The built form is complimentary to the existing built form and operation of buildings on the site.





12

• The proposed built form is consistent with the character of existing development directly

adjoining the subject area.

• The proposed development will not adversely impact on the amenity of adjoining properties, or

properties within the site in relation to solar access, privacy or views.

• The proposal is the logical development of the site, with regards to the building heights and

scale in the Victoria Road corridor.

• The proposal represents the orderly and economic redevelopment of the land.

The proposed scale of the development is the logical development of the site. The contravention of the

development standards is easily justified and should be supported.

3.6 Overview

For the reasons outlined above, it is considered that the objection to Clause 40 of the SEPP Seniors is

well-founded in this instance and the granting of a variation to the development standard is appropriate

in the circumstances. Furthermore the objection is considered to be well founded for the following

reasons:

• The proposal is entirely consistent with the underlying objectives or purposes of the height of

buildings standard.

• The built form and scale of the building will not adversely impact the character of the

streetscape or neighbouring amenity.

• Strict compliance with the standards would hinder the achievement of the objects of the EP&A

Act;

• No unreasonable impacts are associated with the proposed variation.

Overall, it is considered that the proposed variation to the height of buildings control is entirely

appropriate and can be clearly justified having regard to the matters listed within RLEP Clause 4.6.





13

4. Conclusion

It is requested that council supports the proposed variation to Clause 40 of the RLEP for the following

reasons:

• Compliance with the development standard is unreasonable or unnecessary in the

circumstances of the case.

• There are sufficient environmental planning grounds to justify contravening the development

standard.

• The proposed development is the logical provision of built form across the site and surrounding

locality.

• No unreasonable environmental impacts are introduced as a result of the proposal.

• There is no public benefit in maintaining strict compliance with the standards.

• The proposed development is in the public interest.

Given the above justification provided above this Clause 4.6 Variation is well founded and should be

favorably considered by Council.

clause 4.6 variation height of buildings

Documents