Land and Environment Court New South Wales Medium Neutral Citation: Kayellou v Canterbury Bankstown Council [2020] NSWLEC 1361 Hearing dates: 27-28 July 2020 Date of orders: 17 August 2020 Decision date: 17 August 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibit M subject to paying the Respondent's costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The appeal is dismissed. (3) Development consent for Development Application 486/2018 for the demolition of existing site structures and construction of a two storey boarding house containing 6 rooms, and a communal room, alfresco area, with two (2) at grade car parking spaces, 1 garage, two (2) motorcycle spaces and two (2) bicycle spaces at 14 Taylor Street, Lakemba is refused. (4) All Exhibits are returned except for Exhibit E, H, M, 6 and 8. Catchwords: DEVELOPMENT APPLICATION – Weight given to draft Local Environmental Plan – State Environmental Planning Policy (Affordable Rental Housing) – Character of the local area Legislation Cited: Canterbury Local Environmental Plan 2012 Canterbury Local Environmental Plan 2012 (Amendment No 16) Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Omid Mohebati-Arani v Kuringai Council [2017] NSWLEC 143 Texts Cited: Building Code of Australia Canterbury Development Control Plan 2012 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020) Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Practice Note - Class 1 Residential Development Appeals Category: Principal judgment Parties: Farah Kayellou (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Abbas Jacobs Lawyers (Applicant) Marsden Law Group (Respondent) File Number(s): 2019/17286 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 486/2018 for the demolition of existing site structures and construction of a two storey boarding house containing 11 rooms (11 single occupant rooms each with kitchen, bathroom and laundry facilities), and a communal room, alfresco area, with six (6) at grade car parking spaces, 1 single car garage, three (3) motorcycle spaces and three (3) bicycle spaces at 14 Taylor Street, Lakemba. 2. On 3 March 2020, the Court granted the Applicant leave to amend the application and rely upon amended plans the result of which is a development that may be summarised as follows: * 11 single rooms replaced by 6 double rooms * Six at grade parking spaces reduced to 2 at grade parking spaces * Reductions in motorcycle and bicycle parking 1. At this point it is relevant to note that the Applicant tendered plans, later marked Exhibit A, at the commencement of the hearing that contained amendments to those plans for which leave was granted at [2], but which were not the subject of a request for leave as the Applicant anticipated further amendments would be forthcoming. 2. Further plans were prepared, filed and served at 2.15pm on the first day which the Applicant advised would require further amendment and so were not tendered in evidence. I directed that further amended plans be served on the Respondent by 4pm in order for the experts to confer overnight and file a supplementary joint report by 10am on the second day of the hearing. 3. At the commencement of the second day of the hearing, the Applicant sought leave to amend the application and rely upon amended plans. Leave was granted subject to costs thrown away as agreed or assessed pursuant to s 8.15(3) of the EPA Act and the plans were entered as Exhibit M. Approach to the proceedings 1. On 3 June 2020, the matter was listed for a two-day hearing on 27-28 July 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (March Pandemic Policy) on the Court's website. Consistent with the Pandemic Policy to avoid in-person appearances, the parties consented to objector submissions being reduced to writing, no onsite view was set down and the parties consented to the hearing proceeding using MS Teams. 2. However, on 1 July 2020, the Court published an updated COVID-19 Pandemic Arrangements Policy (July Pandemic Policy) that set out arrangements for the staged return to face-to-face attendances in Court and on-site, commencing 8 July 2020. 3. With consent of the parties at case management, conducted by telephone on 23 July 2020, the Court directed that an onsite view be set down at 9.30am prior to the commencement of the hearing on the understanding that it would comprise five attendees and observe appropriate social distancing. 4. I presided at the onsite view where, accompanied by Mr Pickles SC, counsel for the Applicant and Ms Jamleoui, town planning expert for the Applicant, and Mr Seton for the Respondent and Mr McCaffrey town planning expert for the Respondent, I was taken to the rear yard of the subject site, and viewed the streetscape on both the eastern and western side of Taylor Street between Lakemba Street and Railway Parade. 5. Following the onsite view, I returned to Court 13B and commenced the hearing via MS Teams at 11.30am. The site and its context 1. The site is located on the eastern side of Taylor Street between Lakemba Street and Railway Parade, within the R3 Medium Density Residential zone according to the Canterbury Local Environmental Plan 2012 (CLEP 2012). 2. The site has a frontage to Taylor Street of 10.06m and a total area of 488m2. 3. Taylor Street is characterised by a mix of one and two storey dwelling houses on its eastern side and western side, as well as what are described as older style two storey float buildings located close to Lakemba Street. 4. As the proceedings centre on the character of the local area, further description of the surrounding context is set out later in the judgment. The issues 1. The background facts and contentions of the matter as identified by the Respondent are set out in the Amended Statement of Facts and Contentions filed on 2 April 2020, and marked Exhibit 1. The issues may be summarised as follows: * Contention 1 - The proposed development is an overdevelopment of the site as it cannot comply with the minimum frontage and site area requirements in cl 4.1C of the Canterbury Local Environmental Plan 2012 Amendment No. 16 (Draft CLEP No.16). * Contention 2 - The design and siting of the development is not compatible with the character of the local area and will have an unacceptable impact on the streetscape. * Contention 3 - The landscaped area and setbacks of the proposed development are inadequate, inconsistent with the existing and desired future streetscape and will not comply with the minimum requirements prescribed by Draft CDCP 2012 Amendment 5. * Contention 4 - The development application should be refused because the proposed parking layout does not comply with AS2890.1:2004, and does not facilitate appropriate manoeuvrability. * Contention 5 – The design and layout of the proposed boarding rooms result in an incompatible bulk and scale within Zone R3 Medium Density Residential. * Contention 6 - The excessive building depth of the proposed development results in an unacceptable visual bulk and scale which is unsympathetic to the character of the local area. * Contention 7 - The design of the proposed communal open space is inadequate, and inconsistent with the objectives and controls of chapter B2 in Canterbury Development Control Plan 2012 (CDCP 2012). * Contention 8 - The proposed development's contemporary design and roof form are unsympathetic to the prevailing character of development the immediate locality. * Contention 9 – The updated Plan of Management detailing the operation of the proposed boarding house has not been provided. * Contention 10 – The proposed development does not make adequate provision for the disposal of waste, and is inconsistent with requirements of clauses B9.4 and B9.6 in Part B of CDCP 2012. * Contention 11 – The proposed method of stormwater management and disposal is unacceptable and does not comply with the objectives or controls for stormwater in cl 6.4 of the CLEP 2012. * Contention 12 – The development application should be refused because insufficient information has been submitted to allow a proper assessment of the proposed development. * Contention 13 – The proposed development, if approved, will create an unacceptable and undesirable precedent for similar inappropriate development in the area that is non-compliant with CDCP 2012 and CLEP 2012. * Contention 14 - The proposed development is not in the public interest as it will result in a building that provides poor amenity to future occupants, has an unacceptable impact on adjoining properties and does not contribute positively to the streetscape and character of the local area. 1. As the contentions relate to planning and engineering matters, the Court was assisted by the following experts: 1. In respect of town planning matters, Ms Rhonda Jamleoui, town planner for the Applicant, and Ms Kaitlin McCaffrey for the Respondent. The experts conferred in order to prepare a joint expert report filed with the Court on 23 April 2020, marked Exhibit 3. 2. In respect of engineering matters, Mr Ertaz Chowdhury, civil and structural engineering, for the Applicant, and Mr Abdel Albaba, engineer for the Respondent. The experts conferred in order to prepare a joint expert report filed with the Court on 19 May 2020 marked Exhibit 4. 1. As stated at [4], arising from the plans at Exhibit M, the experts were directed to confer at the close of the first day of the hearing and provide a supplementary joint report by 10am on the second day, and I directed that a later commencement on the second day by 30 minutes would be allowed for parties and the Court to read the respective reports. 2. The supplementary reports were not filed by 10am. When they were received, the supplementary planning report was marked Exhibit P and the supplementary engineering report was marked Exhibit O. 3. It is relevant to note at this point that while the parties agreed that the engineering evidence would be heard first, Mr Chowdhury was unavailable when called a number of times. 4. For this reason, the parties agreed the only course of action was to hear the planning evidence first, notwithstanding the supplementary joint report was yet to be received. Planning Framework 1. The site is located within the R3 Medium Density Residential zone as set out in the CLEP 2012, in which boarding house development is permitted with consent and wherein the objectives of the zone relevantly, provide: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. … 1. The proposal is subject to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), and it is common ground between the parties that the proposal complies with the following standards at cl 29 that cannot be used to refuse consent: * Floor space ratio; * Building height; * Landscaped area; * Solar access; * Private open space; and * Accommodation size. 1. Clause 29 (1) and (2) of the Affordable Housing SEPP is in the following terms: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than— (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted—the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus— (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds— (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area)— (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, … (e) parking if— … (iia) in the case of development not carried out by or on behalf of a social housing provider—at least 0.5 parking spaces are provided for each boarding room, and … (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least— (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. … 1. The Respondent submits that notwithstanding aspects of compliance with cl 29 of the Affordable Housing SEPP, the proposal fails to meet the 'character test' set out in cl 30A of the Affordable Housing SEPP and consent must not be granted. Clause 30A is in the following terms: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. Provisions of the Canterbury Local Environmental Plan 2012 in force at the time of the application 1. Subclause 2.3(2) of the CLEP 2012 requires a consent authority, or the Court exercising the functions of the Council on appeal, to have regard to the objectives for development in the zone, at [21], when determining a development application in respect of land within the zone. 2. Clause 6.4 of the CLEP 2012 deals with Stormwater Management and provides, relevantly: The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters. The Canterbury Local Environmental Plan is amended 1. It is agreed between the parties that an amendment to the CLEP 2012, Amendment No.16 (amended CLEP) came into effect on 20 September 2019, as did the Canterbury Development Control Plan 2012, Amendment No.5 (amended DCP). 2. However, as the application was lodged on 20 December 2018, the Applicant's written submissions counsel that the savings provision contained at cl 1.8A of the amended CLEP applies and provides, relevantly, that a development application made, but not finally determined before the commencement of the amended CLEP 2012 must be determined as if the amended CLEP had not been made. 3. The Applicant submits that the savings and transition provision at cl 1.8A sets aside the provisions of the amended CLEP and so must not be determinative in this matter. At most, if the amended CLEP was considered to be a 'proposed plan' at the time of the application, it should not be given significant weight or risk undermining the text of cl 1.8A. 4. If I give the amended CLEP any weight, it must be limited and only have effect if the proposal is so foreign to the intent of the amended CLEP. 5. Of particular relevance to this application is cl 4.1C of the Amended CLEP which requires a minimum site frontage of 20m, and site area controls for boarding houses of 1000m2 in an R3 zone. Instead, the site frontage on the subject site is half that required in the amended CLEP. 6. The Respondent considers the savings provisions to do no more than fictitiously set the amended CLEP back to a point in time immediately before its commencement as shown by Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at [29]. The result is that the amended CLEP, at cl 4.1C, is a mandatory consideration in accordance with s 4.15(1)(a)(ii) of the EPA Act as the amended CLEP has been the subject of public consultation and has been notified to the consent authority. 7. In further support of its argument, the Respondent relies on Council minutes and correspondence (Exhibit 2, Tabs 17-21) in which consolidation of the Canterbury and Bankstown LEP's is agreed by way of a planning proposal that, at Tab 20, is determined favourably by the Department of Planning, Infrastructure and Environment. 8. The amended CDCP introduces objectives and controls relating to the built form of boarding house development contained in amendments to Chapter C7 Boarding Houses. 9. The provisions of Chapter C7 that applied prior to the amended CDCP are contained in Exhibit 5, Folio 47 and are in the following terms: "Boarding house is defined under LEP. Boarding houses can be carried out under State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordability SEPP) and the LEP. Where a development application is required, an assessment of the relevant provisions of the Affordability SEPP and LEP will be undertaken." 1. The amended CDCP also contains a savings provision, at Part A1.9 that provides, relevantly, that a development application made, but not finally determined before the commencement of the amended CDCP must be determined as if the amended CDCP had not commenced. 2. Authorities such as Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 and Omid Mohebati-Arani v Kuringai Council [2017] NSWLEC 143 are said to support the Applicant's position to the effect that I should give the amended CDCP little or no weight for the same reasons as the amended CLEP. 3. I note that the application was prepared and lodged prior to the commencement of the amended CLEP, at a time before the operation of cl 4.1C required a site frontage of 20m and a site area of 1000m2. Given this, the savings provision at cl 1.8A must play some role in constraining the application of the provision in respect of this appeal. 4. That said, I accept the Respondent's submission that the amended CLEP, had been exhibited so I consider the provisions of the amended CLEP and amended CDCP to be relevant when considering the character of the local area in accordance with cl 30A of the Affordable Housing SEPP. 5. This is because the provision at cl 30A of the Affordable Housing SEPP does not exclude the desired future character of the local area from being a factor I must take into consideration, and which will be shaped by the amended CLEP. 6. I also note that the wording of cl 30A requires the consent authority, or in this case the Court exercising the functions of the Council as the consent authority on appeal, to take into consideration whether the design of the development is compatible with the local area (my emphasis). 7. As such, it is not worded as a prohibition on the grant of consent, and so I accept that even if I conclude that the design of the development is not compatible with the character of the local area, consent is not precluded by that fact alone. The character of the local area 1. It is commonly held by the parties that the character of the area is defined by those properties on the eastern side of Taylor Street, and that the character is predominantly established by the presentation to the street in the form of front setback, and provision of car parking, hardstand and landscaping. 2. The Respondent submits that the plans at Exhibit M increase the area of hardstand in the front setback from that proposed in the plans at [2] for which leave was granted, and, combined with the car parking provision in the front setback, 80% of the ground floor façade is dedicated to car parking which is out of character with a streetscape the Respondent describes as 'eclectic' but for which there is no equivalent. 3. A streetscape character analysis, prepared by Ms Jamleoui (Exhibit H), is said to demonstrate that carports, garages and car parking in the front setback are a dominant aspect of the character. Ms Jamleoui accepts that around 80% of the ground floor façade is dedicated to car parking and garaging of vehicles, but this is moderated by the extent of deep soil landscaping, which is greater than that evident at Nos 6, 8 and 20 Taylor street. 4. Ms McCaffrey is of the view that the properties relied on by the Applicant, at Nos 6, 8 and 20, are identifiable as anomalies in the street, and one property may comprise aspects of unauthorised hardstand that should exclude them from consideration. 5. According to Ms McCaffrey, the existing character of the eastern side of Taylor Street is set by the subdivision pattern which, absent site consolidation, is largely single garages and carports and landscaping in front setbacks while the future character is likely to comprise site consolidation for multi-dwelling and dual occupancy development. 6. Furthermore, the setback of the ground floor car parking area will be visible from Taylor Street, including an area that is setback 15m from the front boundary and deeply shadowed by the balcony overhang, creating a dark void which is out of character. 7. In summary, Ms Jamleoui considers the proposal to be consistent with the character of the eastern side of Taylor Street for the following reasons: * The street is predominated by garaging and carports in, or visible from the front setback; * The pitched, terracotta tile roof; * Two-storey form akin to a two-storey single dwelling; * Amount of glazing is consistent with the streetscape; and * Recessed porch and front door. 1. Ms Jamleoui accepts that, but for the savings provision at cl 1.8A of the amended CLEP, and now in force, boarding house development requires a site frontage of 20m and a total site area of 1000m2. 2. Ms Jamleoui is not aware of any offers made by the Applicant to adjoining property owners for the purposes of consolidation. 3. While the intent of cl 4.1C of the amended CLEP is unquestionably to encourage site consolidation, the application was lodged in advance of the adoption of the provision, and so I make no adverse finding at the absence of offers to adjoining properties for purchase. There is no suggestion that adjoining sites would be isolated by the development, and so the tests usually considered by the Court also do not apply. 4. Clause 30A of the Affordable Housing SEPP requires that the consent authority, or the Court exercising the functions and powers of Council on appeal, must not consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 5. The eastern side of Taylor Street is a richly vernacular mix of modest suburban Australian housing styles comprising face brick, weatherboard and rendered masonry. There is a mix of single and two-storey dwellings. 6. I agree with the observation of Mr Pickles SC at the onsite view that older properties are generally closer to the street, and newer developments are setback further, with hardstand a feature of these 3 or 4 properties on the eastern side of Taylor Street. 7. However, I do not regard 3 or 4 properties to set the existing character of the street which, on its eastern side, comprises 16 properties (Exhibit 6). Rather, I accept Ms McCaffrey's view that such a limited number, when viewed in the context of the street, are more appropriately considered anomalous. 8. Of these, not one dedicates such a proportion of its front façade to car carparking as the proposed development. 9. I agree with Ms McCaffrey's assessment that around 80% of the ground floor façade is dedicated to car parking. I also consider the manner of it to be foreign in the context of the street. Unlike properties at Nos 6, 8 or 20, the proposed development is for both a double garage and a carport side-by-side. 10. Additional to this, the proposed development also seeks to provide motorcycle parking in the front setback. While the provision of parking for 2 motorcycles is, in itself, unoffensive, the totality of the front setback dedicated to parking is excessive and not compatible with the existing character of the street. 11. This arrangement is not replicated anywhere in Taylor Street, and would be, in my view, an intensification of carparking in the front setback of properties in Taylor Street. For these reasons I do not consider the proposed development to be compatible with the character of the local area. 12. For reasons that I will expand upon shortly, I also consider the front façade to be so substantially unresolved in terms of structural support, materials and finishes that the Taylor Street elevation in Exhibit M cannot be realised as is currently proposed by the Applicant. 13. As a result of the plans at Exhibit M, the experts are agreed on a number of aspects originally the subject of contentions in respect of carparking onsite. Importantly, the Respondent considers it acceptable for vehicles exiting the site on to Taylor Street to do so in reverse, and not in a forward direction. Consequently, swept paths to demonstrate a turn on site are not required. 14. The provision of an accessible car parking space is also acceptable to the Respondent, but results in 2 car parking spaces in total, which does not achieve the number required by cl 29(2)(e)(iia) of the Affordable Housing SEPP for the development to prevent the refusal on the grounds of car parking provision. 15. Ms Jamleoui is of the view that two car parking spaces are sufficient given the site's close proximity to public transport, and Mr Chowdhury considers on street car parking on Railway Parade to be convenient to the site. 16. In his oral evidence, Mr Chowdhury advised that he lived close to the site, knew Taylor Street well and had visited the site on a number of occasions. While Mr Chowdhury initially advised that he had "checked all aspects of demand" in respect of traffic, the Court was not presented with any evidence of a traffic survey or study. 17. At this point, it is necessary to describe in more detail the arrangement of car parking spaces on the site as proposed in Exhibit M as the parties are agreed that the drawings do not, in their current form, provide the Court with clarity on the development the subject of the development application. 18. Ground floor plans at Exhibit A show 3 car parking spaces and an entry foyer to the building of 1640mm in width. Ground floor plans at Exhibit M show 2 car parking spaces, including one accessible space, and a shared zone for circulation, and an entry foyer to the building of 900mm in width. 19. The Accessible car parking space is proposed within a 'double garage', permitting a single car to be parked alongside a shared zone, which has direct access to the Boarding house. 20. Separating the garage from the carport to its north is a solid wall that is denoted on the Northern Elevation as 'FB' which the legend indicates to mean 'face brick'. Relevantly, the thickness of this wall is not dimensioned but appears to be around 70mm thick. The same situation is evident in the wall to the south of the garage, separating the garage from the entry foyer. 21. As will become clear, the thickness of walls is critical as to whether the materials and finishes depicted on the drawings can be achieved. 22. For clarity, the dimensions of a metric standard brick are 230mm long x 110mm wide x 76mm high. 23. Both car parking spaces are located below the area marked on the First Floor plan as Bedroom 5, its ensuite and a large balcony fronting Taylor Street. 24. It is also necessary to record that throughout the proceedings, the structural support of the western façade fronting Taylor Street varied. For completeness, plans prepared by the Applicant and served on the Respondent, but not entered as evidence, showed a column supporting the north western portion of the first floor including, broadly, Bed 5, its ensuite and the balcony. 25. The plans at Exhibit A do not shown this column, but instead show engaged piers in the vicinity of the garage the subject of later amendments. 26. Plans at Attachment A and Attachment B of the engineering joint report (Exhibit 4) shows 3 car parking spaces and neither a column in the north western portion, or the engaged piers. 27. The plans at Exhibit M show 2 car parking spaces but do not show either the column or the engaged piers, suggesting a substantial cantilever over the ground floor carparking area and driveway. 28. My understanding of the evolution of the drawings is that the column prevented the manoeuvring of the car into, and out of, the carport and so was removed. Likewise, the engaged piers were deleted when the wall in the garage was removed sometime between Exhibit A and Exhibit M plans to create the accessible parking and shared zone. 29. Mr Albaba, who is also a structural engineer, stated that it was his assumption that a structural solution was intended by the Applicant even though there was no structural support evident on the plans. In fairness to Mr Albaba, I accept that the Exhibit M plans were prepared late in the day on 27 July 2020, notwithstanding the date of revision on the Exhibit M plans purports their preparation on 23 July 2020. 30. In his oral evidence, Mr Chowdhury suggested different locations that may accommodate structural columns and stated that "once the DA is approved, concrete columns can be added". 31. As a direct consequence of the arrangement of the carport and garage as described above, the plans marked Exhibit M show a width of 900mm in the foyer. The Respondent submits that the Building Code of Australia (BCA) requires a continuous path of travel to an exit of 1000mm wide, in accordance with Part D1.6(b)(i). 32. The walls bounding the foyer to the north and south appear to be drawn at a thickness that is less than the width of a brick when compared to the cavity brick as drawn immediately adjacent in Bedroom 1. 33. Mr Chowdhury advises that a wall thickness of 150mm, if concrete, or 270mm if cavity brick, is required to support the first floor slab. However, the walls to the north and south of the foyer do not appear to be this thickness. 34. Absent a dimension on the drawings, I sought the view of the experts as to the thickness of the foyer walls as drawn. When comparing the thickness of the walls bounding the foyer to the cavity brick wall adjacent at Bedroom 1, my assessment was that the walls appeared to be in the order of 50-70mm thick. While I sought a response from Mr Chowdhury to my assessment on a number of occasions, a clear response was not obtained from him. Mr Albaba agreed with my assessment. 35. In short, achieving the 900mm width of the foyer as it appears on the drawings, aside from whether or not that dimension complies with Part D1.6 of the BCA, appears to be at the expense of a reasonable and practical wall construction and in contradiction to the minimum requirements advised by Mr Chowdhury, and the notation on the elevations. 36. A symbol on the South Elevation, (Exhibit M, drawing sheet 5) denotes the wall finish to be 'FB' which the legend indicates to mean 'face brick'. From the thickness of the foyer walls depicted on the plan I can only conclude that the walls shown on the plans are unlikely to be, or perhaps cannot be, face brick without compromising the dimension of the foyer, and possibly the garage and carport fronting Taylor Street. 37. When asked to apply Mr Chowdhury's advice on the wall thickness required to the foyer wall to support the concrete slab above, Mr Albaba advised that the resulting width of the foyer would be less than 800mm. Mr Chowdhury did not contest this view. 38. An additional hurdle in clarifying the development for which the Applicant seeks consent is that the plans at Exhibit M, prepared by Aspire Design & Engineering, Architectural Consultant Engineering, have not adopted common drafting conventions that would assist a reading of the plans with clarity as required by Schedule A of the Court's Practice Note on Class 1 Residential Development Appeals, such as varying line weight or hatching to indicate wall construction. 39. Drawing Section A-A (Exhibit M, Sheet No 6) clearly depicts a single skin of external cladding absent any notation, hatching or other assistance to confirm the wall construction. The single skin of external cladding in the section is consistent with the plan which, at Bedroom 5 and the foyer through which the section is taken, also shows a single skin of external cladding. 40. This is in contrast to the BCA Report at Exhibit J which states in the text of the footer of each page, that the proposed development is 2-storey cavity brick construction. 41. A detail marked 'Detail at eaves' (Exhibit M, Sheet No 4) further confounds. While the development the subject of the development application is said to be cavity brick, and the Section depicts a single skin construction, the detail depicts brick veneer. A note directed to a bi-fold door is also found, although the plans depict no bi-fold door. 42. While the means of structural support is not raised in the contentions, the character of the presentation to Taylor Street is. Whether or not a column, or columns, or additional walls, or engaged piers within walls that are either currently proposed, or may be proposed, is or are required, there is no doubt in my mind that it, or they, would alter the Northern, Western and, potentially, the Southern elevations. 43. Further, for the reasons set out at [81]-[90], the application is not resolved on the wall construction proposed. Additionally, for the reasons at [81]-[86], it is unclear as to whether the wall construction depicted on the elevations and the materials and finish set out in Exhibit E can be achieved and still provide for the side setbacks, proposed car parking and circulation, and occupant entry into the building. 44. The Applicant acknowledges that the plans require further amendment to resolve the structural solution, and to clarify those aspects of wall construction. 45. While an adjournment was not sought by the Applicant for this purpose, I have considered whether a judgment with preliminary directions to resolve those matters is appropriate. 46. For the following reasons, I conclude it is not: 1. Firstly, the Applicant was permitted significant latitude in respect of the plans that comprise the development the subject of the development application. In particular, the Applicant was permitted to complete the first day of the hearing on the basis of amended plans that were tendered but not relied upon for the purposes of amending the application. While further amended plans were handed up in the course of the first day of the hearing, the Applicant advised that those plans were not resolved and further work was required prior to the opening of the second day at which time a set of settled plans, marked Exhibit M, were tendered. 2. Secondly, the Applicant's request for leave to rely upon the amended plans at Exhibit A, and those at Exhibit M for which leave was sought to amend the application, were granted without objection. The Applicant was not prevented from amending the application during proceedings. 3. Thirdly, during the first day of the hearing, I advised the Applicant on a number of occasions that, in my view, the plans contained matters of concern. The Applicant was put on notice. 4. Fourthly, as stated at [91], whether or not a column, or columns, or additional walls, or engaged piers within walls that are either currently proposed, or may be proposed, is or are required, there is no doubt in my mind that it, or they, would alter the Northern, Western and, potentially, the Southern elevations. 5. Fifthly and finally, the composition of the Taylor Street façade was the subject of contentions, a focus of the joint expert reports, and supplementary expert reports. It is my view that the further amendments now required to resolve the structural solution and the wall construction, materials and finishes would not resolve, and are likely to aggravate, the contentions and may even result in new contentions. 1. The form, location and arrangement of structural support, and the nature and extent of materials and finishes to the Taylor street frontage is uncertain. 2. However these matters are resolved, if indeed they can be, it remains that 80% of the Taylor Street ground floor façade is dedicated to car parking, with motorcycle parking also visible in the front setback. As stated at [60], I conclude that the proposed development is not compatible with the character of the local area as required by cl 30A of the Affordable Housing SEPP. 3. While this does not prevent me from finding that the proposed development warrants consent, for the reasons set out above, I consider the proposal to contain such fundamental flaws, inconsistencies and conflicts that are likely to be unresolvable in the current form of the development. 4. In arriving at this conclusion, I note that a constraining factor appears to be the lot frontage width in the north-south direction. While it may not be determinative in itself, a lot width of greater dimension would seem to allow an alternative arrangement in car parking and landscaping, and would certainly permit cavity brick wall construction of 270mm thick, or structural concrete of 150mm thick, and an entry foyer with a dimension that allows 2 occupants to pass, and to provide an acceptable path of travel to exits. 5. I find the proposed development is not compatible with the character of the local area. Additionally, I also consider that the likely form of the development the subject of the development application is subject to such further amendment of a fundamental nature that I can only conclude that the public interest lies in the Court dismissing the appeal. For this reason I do not need to further consider the contentions. Orders 1. The Court orders that: 1. The Applicant is granted leave to amend the application and rely upon amended plans marked Exhibit M subject to paying the Respondent's costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Development consent for Development Application 486/2018 for the demolition of existing site structures and construction of a two storey boarding house containing 11 rooms, and a communal room, alfresco area, with two (2) at grade car parking spaces, 1 garage, two (2) motorcycle spaces and two (2) bicycle spaces at 14 Taylor Street, Lakemba is refused. 4. All Exhibits are returned except for Exhibit E, H, M, 6 and 8. ……………… T Horton 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: 17 August 2020