Land and Environment Court New South Wales Medium Neutral Citation: Rahman v Campbelltown City Council [2021] NSWLEC 1211 Hearing dates: 22 April 2021 Date of orders: 2 June 2021 Decision date: 02 June 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is dismissed. (2) Development consent for Development Application No. DA-3886/2019/DA-BH for the demolition of a single storey dwelling and erection of a boarding house containing 16 boarding rooms at 1 Durham Street, Minto is refused. (3) The exhibits are returned apart from 1 and 3. Catchwords: DEVELOPMENT APPLICATION – demolition of existing structures and construction of a boarding house – site located in R3 Medium Density Residential zone – whether the proposed development exhibits design excellence Legislation Cited: Campbelltown Local Environmental Plan 2015 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2015 Amendment No 7 Category: Principal judgment Parties: Mohammed Rahman (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: M Rahman (Self-represented) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Marsdens Law Group (Respondent) File Number(s): 2020/40440 Publication restriction: No Judgment The proposal 1. The applicant, Mr Mohammed Rahman, has appealed against the Campbelltown Council's deemed refusal of his Development Application No. DA-3886/2019/DA-BH for the construction of a 16-room boarding house development at 1 Durham Street, Minto (the site). 2. The development comprises two separate two-storey buildings referred to as Buildings A and B. 3. Building A is proposed to be located at the front of the site and Building B is to be located at the rear. There is a central car park located between the two buildings and an area of communal open space located at the rear of Building B. Each building contains eight boarding rooms (including one adaptable room), a communal laundry, and a communal indoor living area. Each boarding room contains a kitchenette and bathroom. Proposed Building A also contains the communal bin storage room intended to be used by the occupants of both buildings. 4. On 9 February 2021, the Court granted the applicant leave to amend his application to include the following amended plans and documents: 1. Architectural Plans prepared by 'Cactus Design and Drafting', Revision F, dated 22 November 2020, Drawing Nos DA01F to DA09F, DA10A to DA13A, and DA15E to DA16A 2. BCA Review of Classification by 'BCA Performance' dated 18 November 2020, pages 1 to 6 3. Stormwater Management Plans prepared by 'C.K Engineering Services' dated 20 December 2020, Drawing No 19916, issue 5, sheet 1 of 5 to 5 of 5 4. Certificate for Stormwater Management Plan, Plans prepared by 'C.K Engineering Services', dated 20 December 2020 5. BASIX Certificate No 1172396, dated 29 January 2021 6. NatHERS certificate (summary) No 0005636210, dated 29 January 2021 7. NatHERS certificate (Building 1) No 0005636196, dated 29 January 2021 8. NatHERS certificate (Building 2) No 0005636204, dated 29 January 2021 9. Waste Management Plan and WMP attachment 1, undated 10. Landscape Plans prepared by 'RFA Landscape Architects', dated July 2020 11. Plan of Management, Revision 2, dated 21 November 2020 12. Parking Design Review by 'Apex Engineering', dated October 2020 13. Perspective 3D views and photomontage, dated 29 January 2021 14. Colour schedule, dated 29 January 2021 1. During the site view, at the commencement of the hearing, Mr Rahman sought leave to rely upon further amended plans and documents . As I was not prepared to adjourn the hearing at this late stage to facilitate the requisite public notification his application was refused and the hearing proceeded on the February 2021 plans. 2. That said, the design of the development in the February 2021 plans is the central issue in the appeal. The Council contending, on the evidence of its planning expert, Mr Luke Joseph, that the proposed development does not exhibit 'design excellence' as required by cl 7.13 in Campbelltown Local Environmental Plan 2015 (CLEP). Conclusion 1. For the reasons that follow, I have determined that development consent cannot be granted, and the appeal must be dismissed. The site 1. The site has an area of 836m2. Its frontage to Durham Street is 15.24 metres, and the depth of the site is 54.86 metres. 2. The land slopes moderately from the rear of the site and towards the front of the site there is a slight cross fall from east to west. As a result, the levels vary from approximately RL 38.67 to 39.46. 3. The site currently contains a single storey brick dwelling with a tiled roof and detached double garage at the rear which is proposed to be demolished. The aerial photograph below gives some context to the development, with the site outlined in red. The locality 1. The locality is characterised by a mixture of single detached dwellings and multi dwelling housing, with a gradual transition occurring from lower-density development to medium-density development. 2. The site adjoins single storey residential dwellings to the east, west and south. The property to the east at 3 Durham Street is a similarly sized allotment occupied by a dwelling house. Adjoining the site to the west are three separate residential properties each occupied by a dwelling hose, two of which front Minto Road (60 and 62 Minto Road) and one with a frontage to Durham Street (1B Durham Street). Adjoining to the south (rear) is 58 Minto Road which is occupied by a single storey dwelling house. 3. At the site view I observed that the dominant characteristics of the existing built form in the local area includes generous landscaped areas forward of the building line and habitable room windows facing the street. Vehicle parking areas are typically setback behind the primary building line and in areas not visually prominent. 4. The site is located within proximity to Minto railway station and Victoria Park. 5. The original application was notified by the Council and 12 submissions were received objecting to the development. The application was then renotified following the February 2021 amendments and the Council received two further submissions - including a petition with 14 signatures opposing the DA. The statutory controls 1. The following controls and policies are relevant to my assessment of the development. State Environmental Planning Policies (SEPPS) 1. The relevant SEPPs are: * State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) * State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 * State Environmental Planning Policy No 55—Remediation of Land Campbelltown Local Environmental Plan 2015 1. The site is within Zone R3 Medium Density Residential. 2. Development for the purpose of "boarding houses" is permitted with consent in Zone R3. 3. A maximum building height of 9 metres applies to the land. 4. Clause 7.13 (Design excellence) applies to the proposed development. 7.13 Design excellence (1) The objective of this clause is to ensure that development exhibits the highest standard of architectural and urban design as part of the built environment. (2) This clause applies to development involving the construction of a new building or external alterations to an existing building on land in the following zones— (a) Zone R3 Medium Density Residential, (b) Zone R4 High Density Residential, (c) Zone B2 Local Centre, (d) Zone B3 Commercial Core, (e) Zone B4 Mixed Use. (3) Development consent must not be granted to development to which this clause applies unless the consent authority considers that the development exhibits design excellence. (4) In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) how the development addresses the following matters— (i) the suitability of the land for development, (ii) existing and proposed uses, (iii) heritage issues and streetscape constraints, (iv) bulk, massing and modulation of buildings, (v) street frontage heights, (vi) environmental impacts such as sustainable design, overshadowing, wind and reflectivity, (vii) the achievement of the principles of ecologically sustainable development, (viii) pedestrian, cycle, vehicular and service access, circulation and requirements, (ix) the impact on, and any proposed improvements to, the public domain, (x) the interface with the public domain, (xi) the quality and integration of landscape design. Campbelltown (Sustainable City) Development Control Plan 2015 Amendment No 7 (CDCP 2015) 1. The relevant parts of CDCP 2015 are: * Part 1: Preliminary * Part 2: Requirements Applying to All Types of Development * Part 3: Low and Medium Density Residential * Part 17: Boarding Houses Design excellence 1. Clause 7.13 of CLEP precludes me from granting consent to the development unless I consider the development exhibits design excellence. In considering whether a proposed development exhibits design excellence, I must have regard to the matters in subcl 7.13(4) of CLEP. 2. The planning experts addressed some of the criteria in subcl 7.13(4) of CLEP in their joint planning report (Exhibit 3) and in their oral evidence during the hearing. While these experts agreed that design excellence is required to be exhibited by the development, they were unable to agree as to what constitutes a sufficient level of design excellence. A summary of Mr Joseph's evidence 1. Put simply, Mr Joseph criticism of the design of the proposed development when assessed against the criteria in subcl 7.13(4) can be grouped into the following categories: * The north-western corner of Building A * The façade (northern elevation) of Building B * The southern elevation of Building A North-western corner of Building A 1. Mr Joseph acknowledges that the need for a widened driveway at the front of the site places a constraint on the positioning of Building A in this location. However, he believes that the prescribed need for the development to achieve design excellence imposes an onus on the development to do more to accommodate and respond to this constraint than merely delineating the minimum area for the driveway and having the building's wall abut the edge of this area. Mr Joseph is of the view that the current building design in this location is entirely engineering-inspired, and gives no consideration to architectural quality. 2. He opines that the splayed north-west corner of Building A has an awkward, unusual, and unattractive appearance that gives the building unbalanced massing. 3. For clarity, Mr Joseph's position is not that splayed walls are inappropriate in all circumstances; he believes that such a feature can be appropriate in situations that are warranted by a site's context or orientation, for example, sites at the corner of two streets that have a splayed corner to deal with vehicular and pedestrian visibility. In this case, where the site is a regular mid-block oriented towards the street, Mr Joseph's view is that the development as a whole should address the street, and having a splayed wall that does not address anything in particular would be out of context and would have an unsatisfactory interface with the public domain and thereby fails to improve the quality and amenity of the streetscape. 4. Mr Joseph said that the example of the approved boarding house at 23 Waratah Crescent, Macquarie Fields helpfully provided by Mr Eugene Sarich shows an alternative way of responding to a required transition in driveway width. At the first-floor level, a cantilevered balcony effectively disguises the impact of the driveway width transition and skilfully responds to the site constraint. Mr Joseph would be supportive if such an approach were to be taken in the present case. That said, at the ground floor level, his view is that the approved boarding house at 23 Waratah Crescent does not provide an adequate architectural response to the required transition in driveway width having regard to design excellence, and that it has the same problems that he has identified above with regard to the proposed development, although to a lesser extent. 5. Mr Joseph believes that the north-western corner of proposed Building A requires an architectural solution that maintains the orientation of the building towards the street. This could include: * A 'squaring off' of the splayed corner at the first-floor level and the provision of a rectangular balcony, as in the approved boarding house at 23 Waratah Crescent, Macquarie Fields. * Removal of the triangular portion of room A01 at the ground level (which would require a reconfiguration of floor space) and replacement with a triangular landscaped area. This would provide additional depth modulation to the building's facade and ensure that the building would be fully oriented towards the street instead of diagonally. 1. These two measures undertaken in conjunction would be numerically neutral in terms of floor space. Façade (northern elevation) of Building B 1. Although the front façade of Building B includes a matrix cladding design, with soffits over two windows and the entry area and a slight stagger in its front wall, Mr Joseph is of the design would appear largely "flat" when viewed from both the street and within the site. He said it lacks both dimensionality and visual interest generated by significant repetition of the same building elements, materials, colour and form, with little variety. 2. And , while Mr Joseph acknowledges that Building B would be less visible from the street than Building A, he opines that this factor does not lessen the importance of Building B achieving a high level of articulation and visual interest as well as activation in the form of balconies. Particularly as Building B will still be visible from the street down the driveway and from within the site. In his view, substantial changes to the façade of Building B would be required in order for it to be truly characterised as achieving design excellent. Southern elevation of Building A 1. Whilst Mr Joseph acknowledges that the southern elevation of Building A would have no visibility from the street, it would be highly visible to residents of the proposed boarding house and visitors to the site from the communal car parking/building entry area. His view is that the building's type and location (a communal building that is visible to its occupants and visitors) warrants a higher standard of architectural design, materials and detailing on its southern elevation, having regard to subcl 7.13(4)(a) of CLEP. 2. Mr Joseph is of the view that the southern elevation of Building A has the following deficiencies: * It is extremely bland; * It has large blank spaces; * It lacks substantive depth modulation; * It fails to provide articulation; * It fails to provide a variety of colours and materials. 1. Mr Joseph believes that the addition of balconies to rooms A07 and A08 (with appropriate privacy screening) would go a long way towards improving the architectural outcome of the southern elevation of Building A, as it would partially address each of the above deficiencies. However, balconies would not address these deficiencies at the ground level, and further architectural treatment would be required in this regard. A Summary of Mr Sarich's evidence 1. Mr Sarich gave evidence that cl 7.13 of the CLEP demands that development achieves a higher standard of design in terms of architecture, detail and materiality than what he calls 'conventional' design or that exhibited in the existing single storey dwellings and two-storey public housing buildings in Durham Street and surrounding streets. Existing developments which Mr Sarich described as typically having "…a bland brick exterior with a simple rectilinear shape and pitched tiled roofs. Development that have little in the way of design detail". 2. Accepting that the intention of the clause is to upgrade the amenity and quality of the public domain, Mr Sarich said that this is to be achieved through a "high standard of architectural design, materials and detailing appropriate to the building type…". With respect to the proposal, Mr Sarich gave evidence that design excellence is achieved through the following techniques: * James Hardie Matrix Cladding in a subdued colour providing a panelised architectural look accentuated by crisp, recessed vertical and horizontal jointing. * A sweeping double-sided overlapping skillion roof design with generous eaves overhang. * Windows geometrically divided to reflect the panelling of the facades. Selected windows are provided with protruding boxed soffits for accent. * A balcony and covered-front entry to the street-facing building. * Roof overhang extended over the splayed corner of the street-facing building. 1. Mr Sarich gave evidence that the nearest example of a new building displaying a degree of design excellence is that located at the corner of Durham Street and Surrey Street, to the east. This building incorporates a butterfly-roof design and protruding framed street facing balconies. He explained that the splayed corner in the proposal is a necessary design detail to allow space for an entering vehicle to stand while a vehicle exits the site. Rather than being considered an "awkward, unusual and unattractive" as contended by the Council, Mr Sarich said that this element should be viewed as an unoffensive design feature which is simply different, but not incompatible within the surrounding context. 2. After identifying a similar design approved within the local government area at 23 Waratah Crescent, Macquarie Fields, Mr Sarich said that it could be argued that the façade of that particular design is overpowered by the projecting-boxed balconies and blade wall, however, acceptability does not turn on one element or another but whether the development delivers an overall design outcome which is of sufficient design quality and will be compatible in the transitioning local context. In his assessment, the proposed development achieves the objectives of the design excellence controls. 3. In relation to Building B, which is a subservient building at the rear of the site and not overtly visible from the street, Mr Sarich said that "[i]t integrates with the design thematic without being the same as Building A and is therefore acceptable". And, as balconies are not required by the design guidelines of the SEPP ARH, they do not need to be provided to achieve design excellence. In fact, Mr Sarich is of the opinion that it would be less than desirable to have balconies facing the internal carpark. Consideration 1. At [58]-[69] of Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126 (Madss), Moore J sets out how I must approach the design excellence provision in cl 7.7 of Blacktown Local Environmental Plan 2015 . Whilst the design excellence provision in cl 7.13 of the CLEP is in different terms the Council submitted that the approach in Madss should be adopted in this case. 2. In that regard, I accept that subcl 7.13(3) of the CLEP requires that I have regard to specified matters listed in subcl 7.13(4) before reaching a conclusion as to whether or not the development in this case exhibits design excellence. Noting, that the clause does not define 'design excellence' nor does the clause seek design excellence I am mindful that the stated objective of the clause in subcl 7.13(1) is "… to ensure that development exhibits the highest standard of architectural and urban design as part of the built environment". 3. Mr Joseph addressed the criterion in subcl 7.13(4) in detail in the joint report and concluded that the development does not exhibit design excellence. I accept his reasoned assessment which is summarised above because it accords with my understanding of the plans and my observations of the site in its context taken at the commencement of the hearing. 4. While it may be the case, as Mr Sarich explained that the splayed north-western corner of the building is a necessary design detail to allow space for an entering vehicle to stand while a vehicle exits the site, the result is an awkward and unattractive design element which gives the building an unbalanced massing. And as Mr Joseph observed, the proposed diagonal wall in this location is not an appropriate way of dealing with the transition in driveway width. This element is out of context in the streetscape and to my thinking offers an unsatisfactory interface with the public domain. I accept Mr Joseph's assessment that this area offers an opportunity for a first-floor balcony with ground floor landscaped area beneath thereby eliminating the need for a diagonal wall. 5. For the reasons articulated by Mr Joseph, as summarised, I do not consider that the proposed development achieves a high standard of architectural design, materials and detailing appropriate to the building type and location in accordance with subcl 7.13(4)(a). Building A presents a poor interface with the public domain as it fails to improve the quality and amenity of the streetscape. To some extent the development's poor interface with the public domain is due to the fact that the development does not provide the quality and integration of landscape design expected in the streetscape. For those reasons, I consider that subcll 7.13(4)(b), (d)(ix) and (d)(x) are not achieved by the proposed development. 6. In respect of Building B, I do not accept, as Mr Sarich suggests, that the matrix of cladding design, soffits over two windows and the entry and a slight stagger in its front wall is a high standard of detailing sufficient to create a façade that can be characterised in its context as excellent. The inclusion of these elements of cladding etc will result in a building that appears flat when viewed from the street and within the site. As Mr Joseph said in the joint report, this façade lacks both dimensionality and visual interest; and contains of the same building elements, materials, colour and form with little variety. 7. Although less visual from the street than Building A, Building B will be visible from the street driveway and from within the site and substantial changes to the façade would be required for it to be characterised as excellent design in the relevant context. And, while the southern side of Building A will not be seen from the street its deficiencies in terms of modulation articulation and variety of colours and materials supports my assessment that the development does not achieve the requisite degree of design excellence in this case. 8. Having carefully considered each of the criteria in the clause against the written and oral evidence before me and for the purpose of making the subcl 7.13(3) determination, I consider the development does not exhibit design excellence as required by the clause. As such, I am precluded from granting consent to this development. Orders 1. Accordingly, the Court orders: 1. The appeal is dismissed. 2. Development consent for Development Application No. DA-3886/2019/DA-BH for the demolition of a single storey dwelling and erection of a boarding house containing 16 boarding rooms at 1 Durham Street, Minto is refused. 3. The exhibits are returned apart from 1 and 3. ……………………… S Dixon Senior 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: 02 June 2021