Background
Carl Van Selm appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) from the Wingecarribee Local Planning Panel’s refusal of DA24/1216. The application sought consent for 11 part two-storey independent living units for seniors at 18 Aitken Road and 52 Kangaloon Road, Bowral, with subdivision, demolition, tree removal, earthworks, internal access, pedestrian paths and landscaping.
The R2 Low Density Residential site is permitted to accommodate seniors housing. The parties agreed the proposal did not breach applicable SEPP Housing development standards. The dispute instead concerned whether its design adequately responded to the site and the Seniors Housing Design Guide, especially an elevated accessible pedestrian ramp and driveway beside Kenilworth Gardens to the west, and close building setbacks to homes east of the site.
The Court’s Holding
Commissioner Walsh dismissed the appeal and confirmed refusal of development consent. Although the Court gave weight to the zoning and the public benefit of additional seniors housing, it held that the proposal’s design produced unacceptable environmental impacts and did not sufficiently respond to its setting.
The approximately 160-metre pedestrian ramp would be elevated for substantial sections along the western boundary. Even assuming a proposed privacy screen, parts of the ramp and screen would exceed four metres in height near the boundary, with insufficient room for meaningful landscape screening. The Court found that the structure, switchbacks and associated works would have a high visual impact on Kenilworth Gardens’ landscaped, quiet-use areas. That impact alone warranted refusal.
The Court independently found the 1 to 1.8 metre setbacks of several units from 10B Aitken Road inadequate. They would materially affect the adjoining low-density garden setting and did not provide adequate landscape curtilage. A balcony for another unit near 20–22 Aitken Road also presented unresolved privacy impacts.
Key Takeaways
- Compliance with development standards does not establish that a seniors-housing design will be acceptable.
- Accessible paths and ramps must be designed to avoid unreasonable visual and privacy impacts on adjoining residents.
- Permissibility in an R2 zone carries weight, but approval still depends on acceptable environmental impacts.
Why It Matters
The decision illustrates that the Court will apply the Seniors Housing Design Guide as part of the required design assessment, including its focus on sensitive integration, landscape curtilage and existing amenity. Accessibility requirements and tree-retention objectives did not justify a design that imposed substantial amenity impacts on neighbours.
For proponents, the case underscores the need to test access arrangements, levels, screening and setbacks early—particularly where a constrained site requires elevated accessible infrastructure close to residential boundaries.