A Section 96 application has been lodged to modify a consent given by Gosford Council in 2007 for a development on a 1.6 hectare block on the corner of Hillview St and Veron Rd, Woy Woy.
The change would see the development change from a 56-unit retirement village to a 160-bed nursing home, costing $27.85 million.
The block contains a protected stand of Umina Coastal Sandplain Woodland endangered ecological community.
Thompson Health Care lodged the application on April 13 for a Section 96 amendment to allow a modification for the land to be used as a “residential care facility”.
Due to the value of the proposed development exceeding $27 million, it will be subject to approval by the Joint Regional Planning Panel.
The residential care facility would include resident recreational spaces, staff and operational facilities and 53 car spaces in addition to 160 beds over three storeys.
Central Coast Council must be satisfied, under Section 96 (2) of the Environmental Planning and Assessment Act 1979, that the development to which the modified consent relates is substantially the same development as that for which consent was granted.
If the application is not for substantially the same development then the developer would be required to submit a fresh Development Application.
The capital cost of the modified development would be $27.85 million.
The Statement of Environmental Effect lodged with the Section 96 application said that the land was “partly occupied by remnant Umina Coastal Sandplain Woodland … contained within a designated bushland protection/conservation area.
Gosford Council holds a positive covenant over the land which spells out an environmental management plan for the bushland.
“The approved development footprint and internal roadway access has been cleared of remnant vegetation,” the developer’s Statement of Environmental Effect said.
The proposed nursing home would provide the 160 nursing home beds in 152 rooms including a 20-room dementia wing.
The new application takes the approved built form from two to three storeys, reduces basement car spaces from 70 to 52, redesigns the main reception/entry and “maintains the existing approved site bushland/conservation area”.
According to the developer, “the overall size of the approved building footprint is being slightly reduced (-206 square metres) as a portion of space that was previously approved as part of the internal building envelope is being converted into external, ground-level, open-courtyard landscaping”.
The building footprint would be reduced from 3164 square metres to 2958 square metres but the addition of a third level would increase the gross floor area from 6427 square metres to 9164 square metres, increasing the floor space ratio from 0.55:1 to 0.79:1 (still under the 1:1 allowed for seniors housing).
According to the developer’s statement, there is no maximum building height applicable to a residential care facility on the subject land so Council can use its discretion as to whether or not it modifies the consent.
The height of the built form will increase “slightly” to accommodate a third residential level and the steeply pitched roof is proposed to be modified to a flat roof form.
Gosford’s LEP2014 has a maximum permissible building height of 8.5 metres which both the approved and proposed developments would exceed.
The developer has asked Council to allow the proposed building height on the basis they believe it “does not result in a significant increase in bulk and scale when compared with the approved development…is not visually evident from the public domain…sits well below the surrounding tree canopy…and does not result in any overshadowing.”
During 2006 and 2007, a proposal to develop seniors living for 41 dwellings on the site with community and recreational facilities was refused by Gosford Council.
The refusal was then upheld by the Land and Environment Court.
Gosford Council then approved a revised application for the development of 37 self-care units, a community hall and indoor swimming pool.
Five subsequent modifications to the approval increased the number of units in the development.
The original consent was modified on five occasions, the last permitted 56 sole occupancy dwellings, community hall, indoor swimming pool, 70 car spaces, car wash bay, ambulance space and the bushland protection/conservation area.
The approved built form included a basement car park, two residential levels and a high pitched roof.
The land was advertised for sale in late 2015.
At that time Gosford Council stated that “Section 95 of the Environmental Planning and Assessment Act 1979 states that a DA is valid for five years from the date of approval.
“As such, this DA would now have lapsed, however, if the land-owners can demonstrate that there has been physical commencement on the site, the DA may still be considered valid.
“The onus is on the land-owner to prove that physical commencement has occurred and for this reason, council cannot provide a definitive response.”
Central Coast Greens spokesperson, Ms Kate da Costa, called for the protection of the bushland when it was advertised for sale.
“It forms a crucial link in a fragile but important corridor leading across the suburb to Correa Bay,” she said.
“The Greens call for the highest level of protection for the vegetation on the block, to help preserve the corridor.”
According to the Statement of Environmental Effect lodged with the latest Section 96 application, Central Coast Council emailed the developer on May 30, 2016, to confirm that, based on evidence provided “of site preparation works carried out prior to the date upon which the consent would have otherwise lapsed (May 14, 2012) that Development Consent 30219/2006 has ‘commencement’”.
The achievement of commencement means the developer has perpetual consent to complete their development on the site.
“Primary evidence of ‘commencement’ was provided to Council on a ‘commercial in confidence’ basis and can be reissued to Council if required.
“Consequently, Development Consent 30219/2006 Part 6 is now able to be further modified in the manner sought by this application, with the consent of Council,” the developer’s statement claimed.
According to the developer’s statement: “The following physical works and other actions have been carried out under the authority of Consent 301219/2006 prior to when the consent would have otherwise lapsed on May 14, 2012.
“Part of the subject land has been registered with the Land Titles Office as conservation land for protection in perpetuity; site security (fencing) measures have been taken to prevent vandalism; and a financial contribution of $225,000 has been made to the Council’s Environmental Trust Fund.
“Water and sewer connections …have been designed and constructed.”
A Professional Consultation Meeting was held with Council officers on September 6, 2016 and the minutes from that meeting include advice from Council to the developer about legal tests that would have to be passed for the nursing home to be treated as a Section 96 modification rather than a brand new DA.
“A proposal can only be regarded as a modification if it involves alteration without radical transformation,” the meeting minutes said.
“The term radical transformation is a very broad term leaving much scope to change a development consent via Section 96,” the minutes said.
“The consent authority must also be satisfied that the modified development will be substantially the same development as authorised.”
Website, 13 Apr 2017
Central Coast Council Gosford DA Tracker, DA30219(07)/2006
Media statements, 6 and 7 Jan 2016
Paul Anderson, Gosford Council
Media statement, 7 Jan 2016
Kate da Costa, Central Coast Greens
Articles, 12 Feb 2007, Peninsula News