Land and Environment Court New South Wales Medium Neutral Citation: Haynes v Northern Beaches Council [2020] NSWLEC 1600 Hearing dates: 5–6 November 2020 Date of orders: 3 December 2020 Decision date: 03 December 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) Leave is granted to rely on: an amended BASIX certificate 949494M_04, dated 9 November 2020; amended plans in Exhibit Q; amended PoM in Exhibit S; and amended arboricultural report in Exhibit M. (2) The appeal is upheld. (3) Development Application 2018/1817 seeking demolition of existing structures and construction of a part one and part two-storey boarding house of 31 rooms, with associated infrastructure and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest is approved, subject to conditions as modified in Annexure A. (4) The exhibits, except for Exhibits A, Q, S, 1 and 5 are returned. Catchwords: DEVELOPMENT APPLICATION – boarding house –compatibility with character and streetscape – amenity – bulk and scale Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15(1), 8.7(1), 8.15(3), State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 26(b), 27, 28, 29, 30, 30A, 30AA, 54C State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Warringah Local Environmental Plan 2011 cll 2.3, 4.3 Cases Cited: Cachia v Manly Council (No 2) [2009] NSWLEC 1107 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020) Northern Beaches Council, Waste Management Guidelines (25 October 2016) Warringah Development Control Plan 2011 Category: Principal judgment Parties: Brain Haynes (First Applicant) Gillian Sudlow-Haynes (Second Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Smith (Applicants) A Gough (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicants) Storey & Gough (Respondents) File Number(s): 2019/216932 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2018/1817 by Northern Beaches Council (hereafter the Council), which as amended, seeks the demolition of existing structures and construction of a part one and part two-storey boarding house with 30 boarding rooms plus a managers room, basement parking, associated civil infrastructure, landscaping and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest (hereafter the site). Background 1. The DA was lodged with Council on 14 November 2018, and subsequently notified to residents, with 21 submissions received, being three (3) in support and 18 in objection, citing issues relating to: character; landscaping; amenity; parking; stormwater management; and waste management. 2. The DA was referred to and recommended for refusal by the Northern Beaches Local Planning Panel (NBLPP) on the same grounds as expressed by Council it is refusal of the DA. 3. The applicant appealed against the refusal of the DA with the Land and Environment Court (the Court), pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. Prior to the hearing of this appeal, on 14 July 2020, leave was granted by the Court to the applicant's request to rely on amended plans (subsequently tendered as Exhibit L), which was not opposed by the respondent. 5. The amended plans were re-notified to residents, with a similar number of submissions and issues raised in objection. In response to the amended documents that support the DA, the respondent filed an amended Statement of Facts and Contentions (SoFC), tendered as Exhibit 1. 6. The DA, as amended and now before the Court to determine, proposes demolition of existing structures, and construction of the following: * part one and part two-storey boarding house with 30 boarding rooms, each including a kitchenette and bathroom. The ground floor also includes a manager's room, with private open space (POS) and a communal room, with communal open spaces (COS). * a driveway at the front of the site has entry from Gladys Avenue, and space in the basement for: 16 cars; 7 motorcycles; and 7 bicycles. * a waste room, bulky storage and services room are also located in the basement. * an on-site detention basin (OSD) for stormwater is located at the rear of the site, suspended within the (rear of the) basement garage and draining towards 45 Bluegum Crescent by way of an easement (as proposed by deferred commencement condition). * landscaping is within the front, side and rear setbacks of the site, and there is removal of some existing trees. 1. The parties agreed to proceed with the hearing of the appeal initially by a site view with limited participants. The respondent advised the Court that no residents sought to make oral submission at the hearing, although would rely on their written submissions, previously submitted to Council during the notification periods (which are tendered in Exhibits 2 and 3). 2. The approach taken by the Court in the hearing process is made with the agreement of the parties, consistent with the Court's COVID-19 Pandemic Arrangements Policy (commenced March 2020). The parties consented to the hearing proceeding remotely using Microsoft Teams software. 3. Evidence before the Court in this hearing relies on written and oral expert testimony relating to planning and waste contentions, a site inspection, together with tendered documents providing context of the site and the local area. Written submissions were provided by both parties in summary of their positions in this appeal. 4. The applicant tendered during the hearing, in response to expert evidence, and with some opposition from the respondent with respect to the costs involved in review and potential uncertainty in the proposal before the Court, the following documents, which the Court grants leave to rely on: * amended BASIX certificate (Exhibit O), * amended architectural plans (Exhibit L), * amended landscape and stormwater plans (Exhibit B), * amended conditions (Exhibit G), * amended waste design (Exhibits J), * amended Plan of Management (PoM) (Exhibit N), and * amended arboriculture report (Exhibit M). 1. During and subsequent to the hearing, in response to expert evidence, the applicant sought leave of the Court, which is granted without opposition from the respondent, the following: * amended architectural plans (Exhibit Q), * amended conditions (Exhibit R), * amended PoM (Exhibit S), and * amended BASIX (replacing Exhibit O). 1. During the hearing, after expert evidence, the applicant retreated from the alternative bin location plan (Exhibit J) and managers room POS location change (Exhibit L), and reverts to the bin location/managers room POS shown in Exhibits L and Q, amended PoM and agreed conditions of consent. 2. Consequentially, the parties amended their agreed conditions of consent, filed with the Court on 25 November 2020, and which replace Exhibit 4. 3. The respondent seeks costs to be determined by the Court, pursuant to s 8.15(3) of the EPA Act, for the additional review of plans/documents that amend the DA, which were provided at late notice and during the hearing. The Court addresses this request later in this judgment. The site 1. The site is a slightly irregular rectangular shape, oriented east-west, and covering a total area of 1393m2. The site is currently occupied by a single storey residential dwelling, outbuildings and a pool along the northern boundary. 2. The site has frontage of 22.86m to Gladys Avenue (forming the eastern boundary, primary frontage) and a lot depth of 61.07m. The western, northern and southern boundaries of the site adjoin existing residential dwellings, including an approved (as yet unbuilt) seniors living development directly to the north. 3. The subdivision pattern within Gladys Avenue is diverse, being large lots with a single storey plus secondary dwelling, similar to that found on the site and common in the streetscape, as well as numerous subsequently subdivided lots, with multiple two storey dwellings deep into the former lot. The contentions before the Court in consideration of this appeal 1. In response to the amended plans and supporting documents relied on in this appeal, the Council filed an amended SoFC, dated 11 August 2020, which includes the following contentions that are now before the Court for assessment of the amended DA under appeal: * inconsistency with local area character due to proposed intensity and scale; * potential for internal and external amenity impacts to residents, specifically solar access, privacy and noise; and * inadequate servicing due to waste management deficiencies. 1. Due to the large number of interwoven issues within each contention, the contentions addressed by the Court are assessed and grouped together in the judgment below, primarily based on character, amenity and waste related issues. Other relevant jurisdictional issues are also addressed in the judgement below, irrespective of whether they were in contention between the parties. Relevant planning controls 1. The requirements of s 4.15(1) of the EPA Act, below are relevant for the Court's consideration, which must be satisfied for the grant of the DA under appeal: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. As the proposed development is a boarding house, the provisions as set out in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) are relevant for the Court's consideration, specifically cll 29, 30 and 30A, which are raised in contention. 2. Clause 29 of the SEPP ARH provides standards that relate to boarding house design, as described below: 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, (ii) if accommodation is provided on site for a boarding house manager—one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if— (i) in the case of development carried out by or on behalf of a social housing provider in an accessible area—at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development carried out by or on behalf of a social housing provider not in an accessible area—at least 0.4 parking spaces are provided for each boarding room, and (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 (iii) in the case of any development—not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (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. (3) A boarding house may have private kitchen or bathroom facilities in each boarding room but is not required to have those facilities in any boarding room. (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 1. At cl 30, the SEPP ARH provides standards which are determinative, whereby the consent authority (being the Court in this appeal) must be satisfied to grant consent to the DA under appeal, as described below: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following— (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. (2) Subclause (1) does not apply to development for the purposes of minor alterations or additions to an existing boarding house. 1. The proposed development must also satisfy the character provision specified in cl 30A of the SEPP ARH, for the Court to grant consent to the DA, as outlined below: 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. 1. The experts agree that the recently amended SEPP ARH includes a new provision relating to the number of rooms in a boarding house within an R2 zone, as described in cl 30AA. They agree that this clause is not determinative based on the date of the DA submission to Council. The weight to be applied to this new clause in assessment of the DA however remains an issue in contention. 2. The site is located within an R2 Low Density Residential zone, as identified in the Warringah Local Environmental Plan 2011 (WLEP). The proposed development is permissible by consent in this zone. The zone objectives established in cl 2.3 are described below and relevant for consideration by the Court: • 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 ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah. 1. The parties agree that the other relevant provisions of the WLEP are satisfied by the proposed development. 2. In consideration of the DA under appeal, the parties draw the Court's attention to the controls of the Warringah Development Control Plan 2011 (WDCP), and specifically the following clauses: objectives (clause A.5); landscaping (clause D1); rear setbacks (clause B9); private open space (clause D2); noise (clause D3); privacy (clause D8); and waste (clause C9). 3. The Council's Waste Management Guidelines, dated 25 October 2016, are relied on by the waste experts, whom specifically refer to Chapter 4. Evidence 1. The Court heard from the following experts in written and oral evidence at the hearing: * Planning – Mr Jeff Mead for the applicant; and Ms Alison McCabe for the respondent. * Waste – Mr Jeff Mead for the applicant; and Mr Tony Walmsley for the respondent. Is the proposed development compatible with the character of the local area? 1. The contention, as posed by Council, relates to inconsistency of the proposed boarding house with the character of the local area, which is a requirement to be satisfied pursuant to cl 30A of the SEPP ARH. 2. The parties directed the Court through the relevant provisions of the SEPP ARH, WLEP and the WDCP to provide a foundation to understand the relationship and consistency of the proposed development with the surrounding character. 3. In essence, the issue between the experts revolves around whether the development presents in harmony with the streetscape and is visually compatible with other existing residential developments in the agreed local area. 4. The proposed landscaping, setbacks and building depth/articulation are all features that the parties seek the Court to consider in its assessment of the amended design, and which they agree relate to assessing compatibility with the local area character, pursuant to cl 30A of the SEPP ARH. 5. The planning experts agree that the local area as it relates to the site is defined as being within Gladys Avenue (eastern and northern boundaries), and extending to the eastern side of Bluegum Crescent (western boundary), and to the eastern side of Frenchs Forest Road (southern boundary). The local area lies within the R2 zone. 6. It is agreed by the experts that the character of the local area is generally and historically one of low density residential developments, consistent with the R2 zone, with built form predominantly appearing as one to two storey dwellings with secondary structures on large lots, deep landscaped areas in the front and rear setbacks, a diverse subdivision pattern, recognising that larger lots are often subdivided with long driveway access to residential dwellings. 7. The experts agree that the local area is responding to the housing needs of the new hospital and the established school, located on the southern side of Frenchs Forest Road and within the local area, which includes the construction of boarding houses and seniors living. 8. Ms McCabe considers that there are two different characters that occur in the local area, being: low density residential developments, as found currently on the site and predominant in Gladys Avenue; and higher density residential and commercial developments associated with the hospital and along the major roads, such as Frenchs Forest Road. She considers that the local area has different attributes, and that Frenchs Forest Road provides a physical barrier to higher density developments. 9. She also considers that development in the local area should respond to its immediate context, which for this site is low density residential within a landscaped setting. She contends that the proposed development appears as an overdevelopment because of the proposed insufficient landscaped area and the two-storey building element extending in the rear of the site. 10. Mr Mead considers that the increasing prevalence of subdivision in the street (Gladys Avenue) presents as two-storey residences occurring deeper into smaller lots with long driveway access. Therefore, a two-storey dwelling across the length of a larger lot, as proposed on the site, would not appear out of character. He identifies a variety of roof forms and pitches across the local area, and different driveway configurations depending on the subdivision pattern. He therefore, considers that the proposed landscaping on the site, is consistent with what currently exists on adjoining properties and the streetscape, and is an appropriate landscape setting that is in context with the local area character. 11. The experts agree that two-storey buildings are present in the rear of a number of large and small sized lots within the local area, and which the Court can agree was observe, including on the adjoining properties. The experts however, disagree whether the proposed transition in the building form from the front to the rear of the lot, from a two storey, one storey then two storey building, is characteristic of the local area. 12. I observed during the site inspection for this hearing that the local area appears to be in transition, adapting to the increase in population that is a function of the new hospital. I consider this evidenced by the subdivision of large lots to allow two-storey residences on smaller lots, and by an increase in higher density developments on the larger lots, such as boarding houses or senior living. 13. I observed the streetscape of Gladys Avenue has deep landscaped frontages with two-storey residential buildings that protrude deep into the lots and served by long driveways. I agree with the experts in their description of the character of the local area, however I favour the description of Mr Mead in terms of housing density and Ms McCabe's in terms of diverse character contexts, responsive to associated infrastructure and commercial activity. 14. I observed in the front setback of the defined local area, excluding Frenchs Forest Road, generally: well landscaped frontages and sides with established, mature trees and undergrowth; driveway from the primary frontage; low visual impact front fences; and waste bin storage as not a permanent feature in the frontage. 15. I also note that parking on the street was an extreme challenge, although recognise that this was not raised in contention as sufficient parking for the proposed development is provided on the site. Separate to this appeal, I postulate that metered and resident ticketed parking on the street would potentially address this issue, which was expressed as a concern of residents, and I suspect is exacerbated by parking needs associated with the new hospital. 16. I accept that the adjoining property has been approved as a seniors living development, with bin storage permanently at the front and substantial hard surfaces. However, I do not consider this characteristic of the streetscape (of Gladys Avenue) or the local area. 17. I was taken during the site inspection to two recently developed boarding houses within the local area, both of which, I consider are not exemplary examples of design, or reflect the desired, future character of the local area. This is not what is proposed on the site. The length and dominance of these buildings in the streetscape, without substantial or landscaped front setback to soften the building form are more a reflection of the different character context that Ms McCabe alluded to. Both these examples are located on busy streets, which is not the same context as the site. 18. In my assessment of consistency with cl 30A of the SEPP ARH, I rely on my observations, expert evidence and the relevant planning tools, such as the SEPP ARH, WLEP and WDCP. 19. There was agreement between the experts that the existing deep landscaped settings, particularly within the frontage are characteristic of the local area and that the amended plans now show the retention of mature trees in the front setback, which adequately reflects this attribute. 20. I agree with the experts that the proposed development satisfies the relevant standards of the WLEP. As the proposed development is a boarding house, the DA is assessed pursuant to the provisions of the SEPP ARH (and WDCP), which supersede many of the relevant environmental planning provisions of the WLEP. 21. The primary issue between the experts relates to the proposed two-storey building form in the rear portion of the site. They agree that the proposed building is two-stories at the front of the site, which transitions to a single storey with a 'green' roof in the centre of the site, and then to a two-storey building at the rear of the site. The two-storey elements of the proposed building contain the boarding rooms and the connecting one-storey element is a common room with connecting hallway, which is further inset from the side setbacks by landscaped COS. The building appears in plan view as an H-shape, oriented in an east-west direction. 22. The experts agree that there are no relevant controls or standards that restrict the presence of two-storey buildings in the rear of a lot or the length of buildings. They also agree that two storey buildings are observed in the rear of a number of lots as viewed from the site. 23. The experts agree that the building bulk of the proposed development should be considered against clause D9 of the WDCP. They disagree whether the second storey element in the rear portion of the proposed building together with the proposed building length of 46 m, is consistent with the requirements and objectives of this control, and therefore compatible with the (desired, future) character of the local area. 24. The experts accept that the proposed development does not comply with the numeric requirement for the proportion of area designated for landscaping, established in clause D1 of the WDCP, at a minimum of 40%. They disagree whether the objectives of this control are achieved. 25. The setbacks provided in the WDCP are described in clauses B3 (side), B7 (front) and B9 (rear). The experts agree that the numeric requirements for setbacks established in the WDCP, are achieved in the amended plans that support the DA. 26. In assessing compatibility with the local area character, cl 29(2)(b) of the SEPP ARH together with the controls on the WDCP, are relevant for the Court's consideration. The presentation of the boarding house to the streetscape is influenced by the landscaped treatment of the front setback. I find that the proposed landscaping in the front setback, with minimal hard surfaces, as shown in the amended plans is compatible with the streetscape and therefore achieves cl 29(2)(b) of the SEPP ARH. 27. The parties agree that height and floor space ratio (FSR) standards, as defined in the WLEP are commonly adopted to inform bulk and scale consistency, and therefore the character assessment. It is agreed that the proposed development complies with the height limit established in cl 4.3 of the WLEP, and there is no FSR applied to the site in this zone. I do not accept it is helpful in to infer an FSR, as proposed by Ms McCabe, to assess the intensity of the development, as there are other relevant controls, as described below, that can assist the Court in the assessment of a development's density/intensity, with respect to character. 28. I am satisfied that the proposed development is compatible with the character of the local area and achieves cl 30A of the SEPP ARH for the following reasons. 29. The second storey element of the proposed building in the rear portion of the lot does not offend any controls of the WDCP or provisions of the WLEP, and further to this, based on my observations, it is a common feature that already existing in the streetscape and local area. The depth of the building as proposed on the site is not visible from the street (front) and is well articulated by the inset of the mid portion of the building to a single storey, with sufficient landscaping and elevation to reduce any bulk as observed from the adjoining properties. 30. The increased setbacks to the central portion of the building, which contains the common room and COS, with a green roof over the single storey element, has the effect to break up any perceived dominance of the building length (46m). I do not find the proposed development inconsistent with the requirements for the controls associated with building bulk described in the WDCP, and consider the proposed 'H-shaped' design of the boarding house assists to reduce the building mass. 31. I agree that the numeric setbacks established in the WDCP are achieved. The proposed landscaping is consistent with the streetscape, and will soften the proposed building to the streetscape and adjoining dwellings. I am satisfied that the proposed development is an appropriate intensity for the local area, and consistent with the density and character of the R2 zone. 32. I find there is no visual impact from the proposed development to adjoining properties and the proposed design of the boarding house seeks to support the urban environment. The proposed landscaping maintains and supports the existing streetscape. Therefore, I find that the objectives of clauses D1 and D9 of the WDCP, which are in contention, are achieved and resolved. I accept the objectives that relate to setbacks are achieved, satisfying clauses B3, B7 and B9 of the WDCP. 33. I accept the evidence of the experts that the proposed development satisfies cl 29(2)(b) of the SEPP ARH. 34. Based on the evidence before me and my assessment, I am satisfied that the proposed development is compatible with the character of the local area. The proposed setbacks are sufficient for deep soil and appropriate landscaping, particularly for canopy trees, and soften the bulk and scale to the streetscape, and adjoining properties. The proposed building depth, with inset in the central portion, results in a well-articulated building, that is compatible with existing developments in the local area. The two-storey building form at the rear of the site is not inconsistent with the streetscape or local area. 35. I find that the proposed development is compatible with the existing and the desired, future character of the local area, and therefore satisfies cl 30A of the SEPP ARH. 36. The parties agree and I concur that the requirements of the newly amended SEPP ARH, which established cl 30AA, is not determinative in assessment of this DA, due to the date of submission of the DA to Council. The DA submission preceded this amendment, and the savings clause in cl 54C effectively saves the proposed development from being assessed pursuant to this provision. I agree with the applicant that little or no weight should be applied to cl 30AA in assessment of desired, future character, as it relates to this DA under appeal. 37. I am satisfied that the proposed development, based its design, landscaping and siting within the lot, is consistent with the objectives for this (R2) zone, established in cl 2.3 of the WLEP, and is compatible with the character of the local area. Is there an amenity impact to adjoining development? 1. The contention as raised by Council relates to the potential for adverse impact to residents in the adjoining property at 4 Gladys Avenue (external), and internally to residents of some of the boarding rooms, in the common room and to the manager's POS. 2. The experts agree that the internal amenity requirements for boarding rooms and common rooms that relate to privacy and solar access are satisfied, based on the amended plans. The relevant solar access provisions of the SEPP ARH are described in cl 29(2)(c), are achieved and it is agreed that there are no (numeric) requirements for solar access to individual boarding rooms. 3. The experts also agree that there are no solar access amenity impacts from the proposed development to adjoining properties (external), based on the amended solar access diagrams that support the DA. 4. I concur that there are no solar access impacts or non-compliances, external or internal to the site, from the proposed development. 5. The experts also agree that the location of the common room and COS on the ground floor, as shown on the amended plans, is obscured by a fence due to its elevation and proposed landscaping, and therefore does not result in any adverse privacy impacts to either boarding house residents or adjoining properties. Privacy to boarding rooms which were of concern on the first floor is now attained by the provision of privacy screens in boarding rooms that face towards adjoining properties, as agreed by the experts. 6. Based on the amended plans, which show the elevation of the common room and COS relative to fence heights with landscaping, and the removal of windows that face into sensitive sightlines, I concur with the experts, as agreed in the hearing, that the issues that relate to potential amenity impact from overlooking/privacy, both external and internal to the site, are resolved. 7. I am satisfied that the requirements and objectives of clauses D2 and D8 of the WDCP are achieved as they relate to solar access and privacy. 8. The experts however, do not agree on whether there is potential for adverse acoustic impacts to adjoining properties from the COS, as described in clause D3 of the WDCP. 9. I accept the proposed changes to the PoM (shown in the amended PoM in Exhibit S) which seeks to restrict the number of persons and time of access to the COS that adjoins the common room to mitigate any adverse noise impact to adjoining residences. I also accept that the adjoining residents have a right of complaint established in the PoM, and that the boarding house manager will take responsibility to ensure the time/person restrictions in the PoM are enforced. I am satisfied that the amended PoM together with the proposed design, which show a significant separation of the COS to the fence line and at an elevation at or below adjoining properties, will have the desired effect to mitigate any potential for unreasonable noise impact. Therefore, the objectives in clause D3 of the WDCP are satisfied. 10. The experts agree that the area of the proposed POS for the managers room, as shown on the amended plans satisfies the requirement for 8m2 established in cl 29(2)(d)(ii) of the SEPP ARH. The experts however do not agree on whether the dimensional requirement of this clause for 2.5m must be attained by all sides of the POS. On my reading of the intent of this clause, I agree with Mr Mead. It is only necessary for one side of the POS to attain a dimension of 2.5m. I determine this based on the specific terminology of the clause, which states 'a minimum dimension of 2.5 metres' is required, suggesting a singular dimensional requirement with the intent to provide a 'useable' space. The proposed area for the manager's room POS therefore achieves cl 29(2)(d)(ii) of the SEPP ARH, as the managers room POS is a useable/functionable space, which satisfies the intention of this clause. I consider the proposed location and size of the POS that services the managers room is adequate and will not result in adverse amenity impact to the manager, boarding room residents or adjoining residents. 11. I am satisfied that there are no unacceptable (external) amenity impact to the adjoining properties from the proposed development, or internally for boarding house residents. I find that the proposed development complies with the relevant provisions of the WDCP and SEPP ARH, as they relate to amenity. Is there appropriate servicing of the site for waste management? 1. The Council contends that the proposed waste management plan does not adequately manage waste generated from the boarding house. The primary issue between the experts relates to: the proposed collection of waste from the street; frequency of service proposed/required; the number of bins required and space in the bin room, if only a weekly collection; and presentation to/function of the street on collection day, due to the limited street frontage. 2. After discussion between the experts during the hearing, the experts agreed that a private contractor whom retrieves/returns the bins directly from the basement twice weekly, will not cause the bins to remain for any length of time on the street. This approach will not result in adverse traffic conditions, as bins would not be left on the street for an extended period and would also require a reduced number of bins to be stored in the basement waste room. The experts agree that the proposed bin storage room and grade of the driveway can accommodate the proposed waste management by a private contractor. 3. In response to this agreed approach to waste management on the site, the applicant amended the PoM and agreed to conditions of consent to reflect waste collection by a private contractor (rather than Council) on a twice weekly basis. 4. The experts agree, and I concur that the amendments made to the PoM and conditions of consent, tendered in Exhibits S and R, respectively, resolves this contention. The proposed waste management is agreed to be consistent with clause C9 of the WDCP and Councils Waste Management Guidelines. Assessment of other relevant jurisdictional requirements not in contention? 1. Pursuant to s 4.15(1) of the EPA Act, to grant consent to a DA, the Court is required to consider all matters of relevance that relate to the DA under appeal, irrespective of whether it was raised in contention or that the original consent authority, in this appeal the Council, is satisfied. 2. Therefore, I provide below a brief overview of the Courts consideration of the relevant jurisdictional requirements that relate to the DA under appeal, which have not been addressed above. 3. I am satisfied that the contention that relates to the BASIX certificate is now resolved by the provision of an amended BASIX Certificate (Exhibit O), which satisfies the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Court notes that the amended BASIX certificate to be relied on was provided to Court after the hearing and dated 10 November 2020. Leave is granted to rely on this version of the BASIX certificate, without contest of the respondent. 4. In consideration of the relevant matters that relate to the environmental planning provisions, both gazetted and proposed, as required in s 4.15(1)(a)(i) and (ii) of the EPA Act, I have already addressed and found consistency with cll 30 and 30A of the SEPP ARH. 5. The other relevant requirements of the SEPP ARH and those of the WLEP are achieved. I am satisfied that all the development standards identified in cl 29 are addressed by the proposed development as shown in the amended plans and supporting documents to the DA under appeal. I find that cl 30AA are not relevant for assessment of this DA, based on the date of submission to Council. I accept that the site is located within an R2 zone, accessible to transport and commercial development, and permissible with consent, pursuant to cll 26(b), 27 and 28 of the SEPP ARH, and cl 2.3 of the WLEP. 6. I am satisfied that the amended DA under appeal complies with the relevant matters established in ss 4.15(1)(a)(i) and (ii) of the EPA Act. 7. In assessment of s 4.15(1)(a)(iii) of the EPA Act, the Court has assessed the proposed development pursuant to the objectives and controls described in the WDCP. Further to the controls of the WDCP previously addressed in this judgment, I am satisfied by the evidence before me that the other relevant controls of the WDCP, are achieved. Specifically, and as originally raised in contention that was advised to the Court as resolved, I accept the advice of Council that the proposed stormwater management system shown in the amended plans (Exhibit B), which relies on an easement through an adjoining property, is capable of servicing the site and is appropriately addressed by conditions of consent. The proposed stormwater management is therefore consistent with clause C4 of the WDCP. 8. I am satisfied that the amended DA before the Court achieves the relevant matters of consideration required for s 4.15(1)(a)(iii) of the EPA Act. 9. I accept that s 4.15(1)(a)(iiia) of the EPA Act is not relevant to the amended DA under appeal. With regards to s 4.15(1)(a)(iv), I accept is addressed by the agreed conditions of consent, and therefore this provision is satisfied. 10. I am satisfied that the proposed development will not have adverse environmental, social or economic impact, and that the site is suitable for the proposed development. Therefore, ss 4.15(1)(b) and (c) of the EPA Act are achieved. 11. I accept that the amended DA under appeal was notified to residents, consistent with the requirements of the WDCP. The (resident) submissions received in response to notification periods have been provided in evidence and are assessed by the Court. I am satisfied that s 4.15(1)(d) of the EPA Act is achieved. 12. The resident submissions have been considered and are addressed to my satisfaction, and there is no assessed adverse impact to adjoining residents. Therefore, I am satisfied that the proposed development is in the public interest, and s 4.15(1)(e) of the EPA Act is achieved. 13. I accept that the development as submitted to Council and assessed by the NBLPP was refused. I consider that the amended DA before the Court is significantly different from what was considered by the NBLPP. The issues raised by the NBLPP and given in the reasons for recommendation of refusal have been addressed to my satisfaction by the amendments made to the design of the building, associated infrastructure, landscaping and ongoing management, which the DA now relies upon. Conditions of consent relating to DA 2018/1817 1. The parties have agreed to the conditions on which the consent should be granted, as provided in Exhibit 4 (dated 9 November 2020). 2. I accept the conditions in full as agreed between the parties, which become Annexure A to DA 2018/1817. Costs 1. The respondent seeks for the Court to make an order pursuant to s 8.15(3) of the EPA Act for the Council's costs thrown away o as a result of an amendments to the DA during the course of the hearing. Section 8.15(3) of the EPA Act states: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies. 1. Mr Gough raised the issue of costs in oral submission during the hearing, in response to the applicants continued amendments to plans and documents that were provided prior to, at the commencement of and during the hearing. Mr Smith made no submission on costs. No written submissions were received by the Court by either parties on the matter of costs. 2. In Cachia v Manly Council (No 2) [2009] NSWLEC 1107 (the Cachia judgment) the Senior Commissioner explained that for Section 97B (equivalent to s 8.15(3) of the EPA Act) to be of effect, two steps are necessary: "[3] '…. The first is that there has to be an allowing by the Court of the filing of an amended development application. The second, but not necessarily requiring to be dealt with sequentially with the first, is a consideration of whether the amendments that would be comprehended by such an amended development application constitute "a minor amendment" or not.'" 1. The first test was met prior to and during the proceedings by the grant of leave for the tender or amendment of the material generally detailed at [5], [11], [12] and [14] above. 2. As a consequence of the amended plans and documents, the respondent amended their SoFC whereby some issues in contention were addressed, however other issues were raised. Expert reports and further amended plans were based on the amended SoFC which the Court relies on in assessment of the DA under appeal. 3. At the commencement of the hearing, the parties were of the view that based on the amended plans tendered at the start of the hearing and expert reports, many contentions were resolved. It soon became apparent during the hearing that the experts were not as agreed in their positions as they appeared to have conveyed in their expert reports. In particular, the waste management issue (servicing contention) took considerably more time in oral evidence due to the uncertainty in the proposed management of waste for the site, lack of detail in the expert reports to what was agreed. 4. In addition, the provision of a number of options for bin locations and the manager POS were tendered by the applicant at the start of the hearing in response to expert reports. However, it is recognised that the applicant did not pursue these alternative options and relied on previously agreed locations. 5. Whilst I recognise that the hearing probably took longer because the experts were required to give more detailed oral evidence and to clarify their positions to the Court, I consider this was mostly because the experts did not conference effectively prior to the hearing and that the expert reports were not sufficiently transparent (to each of the parties) to adequately reflect their shared and opposing positions. This was a fault of both the parties. It also gave the applicant cause for uncertainty, which appeared to result in a design option approach in their attempt to address what they understood to be the outstanding contentions. 6. I do not consider that the amended DA was the cause of unnecessary costs to the respondent. I agree at times the plans did change a number of times during the hearing, although these changes were generally 'minor' and tendered to revert back to what was granted by leave of the Court prior to the amended SoFC. 7. The Senior Commissioner's comments made at [26] in the Cachia judgment reflect that consideration should not be on the number of changes made but the consequence of the changes that amend the DA: "[26] 'I am satisfied that it would be appropriate, consistent with what his Honour said in Coshott and consistent with the legislative intention, to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not.'" 1. The respondent has not put any detailed submission to the Court to support its case for costs as they relate to the amended DA. The respondent did not object to the changes to the plans that supported the agreement between the experts, although did object to having to consider 'options of design' rather than a defined position. I agree with the respondent that an options by design approach was neither helpful nor appropriate during the hearing. . 2. The changes to plans and documents granted leave before and during the hearing were generally positive in resolving key contentions, resulted in a better outcome and as agreed by the experts, the plans amended during the hearing was positive. 3. I find that the plan changes to the amended DA that the respondent seeks the Court to consider costs against, are generally 'minor'. The respondent did not ultimately spend much time in review of the options in design. 4. Therefore, I do not find the second test has been satisfied to grant costs to the respondent. No costs are ordered. Conclusion 1. The proposed development has been assessed, based on the evidence before me, including the DA's (amended) supporting plans, documents, agreed conditions of consent, expert reports and submissions from experts and residents. 2. In determining this application, I find that the DA does satisfy the requirements of the relevant instruments for assessment, namely the EPA Act, SEPP ARH, the WLEP and WDCP. The reasons for my determination are principally because the proposed development: is consistent with the streetscape and compatible with the character of the local area; does not cause adverse amenity impact to adjoining residences or boarders; presents with a design suitable for the site; and is in the public interest. 3. Therefore, DA 2018/1817 is approved, subject to conditions of consent in Annexure A, pursuant to s 4.16(1)(a) of the EPA Act. Orders 1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on an: amended BASIX certificate 949494M_04, dated 9 November 2020; amended plans in Exhibit Q; amended PoM in Exhibit S; and amended arboricultural report in Exhibit M. 2. The appeal is upheld. 3. Development Application 2018/1817 seeking demolition of existing structures and construction of a part one and part two-storey boarding house of 31 rooms, with associated infrastructure and tree removal on Lot 4 DP 25713, also known as 6 Gladys Avenue, Frenchs Forest is approved, subject to conditions as modified in Annexure A. 4. The exhibits, except for Exhibits A, Q, S, 1 and 5 are returned. ……………………............. Sarah Bish Commissioner of the Court Annexure A (318018, pdf) Plans (19095555, pdf) ********** 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: 04 December 2020