Land and Environment Court New South Wales Medium Neutral Citation: Penshurst Laycock Pty Ltd v Georges River Council [2021] NSWLEC 1382 Hearing dates: 29-31 March 2021, written submissions 23 April, 14 May, 3 June 2021 Date of orders: 30 June 2021 Decision date: 30 June 2021 Jurisdiction: Class 1 Before: Horton C Decision: Proceedings 2020/208036 See orders at [137] Proceedings 2020/208037 See orders at [138] Proceedings 2020/208038 See orders at [139] Catchwords: DEVELOPMENT APPLICATION – boarding house development in R2 Low Density Residential zone – State Environmental Planning Policy (Affordable Rental Housing) 2008 – Penshurst Heritage Conservation Area – character of the local area – incursion into tree protection zone Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.15 Kogarah Local Environmental Plan 2012, cl 5.10, Sch 5 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30A, 30AA State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 10 Cases Cited: Kevin Gregory and Patricia Gregory v Central Coast Council [2017] NSLEC 1400 Texts Cited: Australian Standard AS4970-2009 Kogarah Development Control Plan 2013 National Construction Code Category: Principal judgment Parties: Penshurst Laycock Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/208036; 2020/208037; 2020/208038 Publication restriction: No Judgment 1. COMMISSIONER: A detached face-brick dwelling currently occupies a site at No 29 Laycock Road, Penshurst, on which the Applicant in this matter, Penshurst Laycock Pty Ltd, proposes separate development applications for a boarding house on each of the three lots comprising the site. 2. Each of the three Class 1 appeals is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal of the development applications by Georges River Council (the Respondent). 3. It is helpful at this stage to identify the three development applications by reference to the proceedings numbers, and the lots to which each development application applies. 1. Proceedings No 2020/208036 is in respect of Development Application DA 2020/0162 on Lot 11 in DP 11098 and proposes: * Removal of two trees * Earthworks including excavation of approximately 4.3m at the rear of the site * Construction of two buildings consisting of a two-storey building at the rear of the site (containing one residential level above a double garage fronting Pacific Lane), and a two-storey building at the front of the site containing two residential levels). 1. Proceedings No 2020/208037 is in respect of Development Application DA 2020/160 on Lot 9 in DP 11098 and proposes: * The demolition of part of the existing dwelling house, and all improvements * Removal of three trees * Earthworks including excavation of approximately 4.3m at the rear of the site * Construction of two buildings consisting of a two-storey building at the rear of the site (containing one residential level above a double garage fronting Pacific Lane), and a two-storey building at the front of the site containing two residential levels). 1. Proceedings No 2020/208038 is in respect of Development Application DA 2020/0161 on Lot 10 in DP 11098 and proposes: * The demolition of part of the existing dwelling, and all improvements; * Removal of one tree * Earthworks including excavation of approximately 4.3m at the rear of the site * Construction of two buildings consisting of a two-storey building at the rear of the site (containing one residential level above a double garage fronting Pacific Lane), and a two-storey building at the front of the site containing two residential levels). 1. Relevantly, the three separate development applications propose development on Lots of land that immediately adjoin and which the parties agree, to some extent, are inter-related, if not interdependent. 2. While there are three development applications for the Court to determine in this matter, it is helpful to state that the parties and experts variously describe the developments the subject of the development applications in the holistic singular ('the development' and 'the site'), as three individual applications on three sites, and also as two developments, being Lot 9, and Lots 10 and 11 together. The site and its context 1. The site at Lot 9 presents a frontage of 6.02m to both Laycock Road and Pacific Lane, and a site depth of 45.72m resulting in a site area of 271.9m2. 2. The site at Lot 10 presents a frontage of 6.02m to both Laycock Road and Pacific Lane, and a site depth of 45.72m resulting in a site area of 271.9m2. 3. The site at Lot 11 presents a frontage of 6.02m to both Laycock Road and Pacific Lane, and a site depth of 45.72m resulting in a site area of 271.9m2. 4. The total combined area of Lots 9, 10 and 11 is 815.7m2. 5. Each lot falls steeply from Laycock Road to a cul-de-sac at the rear known as Pacific Lane. 6. As the sites are close to the top of a slope that continues to fall to the south west, each enjoys distant views towards Mortdale and beyond. 7. Adjoining the site at Lot 9 to the north west is a building said to be a former shop, with a zero setback to the street, and to its side boundaries, and which may have once supported an awning over the footpath. 8. Further to the north west of the former shop building is a residential flat building that also presents a zero setback to Laycock Road. 9. The site is located close to the Penshurst railway station which the parties agree serves to qualify the site as being within an accessible area. 10. The proceedings commenced with an onsite view during which the Court, in the company of the legal representatives and experts, was taken on a short walk to observe the character of Laycock Road within a visual catchment determined by the heritage experts. 11. The Court was then taken to the rear lane to the site, known as Pacific Lane, via Railway Parade and Pacific Avenue. 12. The Court heard the oral submission of Ms Davis, additional to written submissions at Exhibit 2, Tab 86, in the rear yard of No 25 Laycock Road which may be summarised as follows * The proposed development at Lot 9 is built to the boundary, and likely to impose a number of adverse impacts on the existing dwelling at No 25 Laycock Road, as well as the amenity of its owners. * Landscape planting that currently provides privacy and amenity is proposed to be removed. * Outdoor communal areas do not provide privacy for the future occupants, and are likely to generate noise. * In the event the proposed development is approved, a 6m tall, double brick wall is preferred in lieu of the proposed privacy screen alongside the external deck of No 25 Laycock Road. 1. During the onsite view, Ms McCallum, of Daisy Avenue was granted leave to provide a brief oral submission, in addition to written submissions, on the grounds that renotification encouraged submissions to be lodged by use of the internet which was a barrier for Ms McCullum. Ms McCallum's submission is in similar terms to her written submission at Exhibit 2, Tab 23. 2. Further resident submissions are contained in the Respondent's bundle marked Exhibit 2. Five residents were heard at the commencement of the hearing via Microsoft Teams, in addition to the written submissions contained in Exhibit 2, Tabs 3 and 10. 1. Mr Lee, owner of No 31 Laycock Road, provides written submissions at Exhibit 2, Tabs 41 and 89 and oral submissions summarised as follows: * The proposal effectively provides affordable housing at the expense of the amenity of existing residents. * Sunlight to communal areas in the proposal are at the expense of sunlight to certain rooms at No 31 Laycock Road. * The number of future occupants proposed will generate noise and the proposed mitigation and enforcement strategies are, or will be, ineffective. * The scale of the proposed development will generate waste and once bins are placed on the street for collection, the footpath and verge will be obstructed. * Geotechnical investigation is inadequate, and insufficient car parking is provided. 1. Mr Lo, owner of No 39 Laycock Road provides written submissions at Exhibit 2, Tabs 24 and 80 and oral submissions summarised as follows: * Overlooking of the property by future occupants impacts the privacy currently enjoyed. * Insufficient car parking is proposed, with impacts on traffic congestion in the area likely to result. * Waste bins will obstruct the street during collection. * The proposal is not consistent with the heritage values of the conservation area. 1. Mr Barker, owner of No 27 Pacific Avenue, provides written submissions at Exhibit 2, Tabs 71 and 99, and oral submissions summarised as follows: * The characteristics of the heritage conservation area should be preserved, including the existing dwelling which is a contributory item, and the mature trees. * The scale of the proposed development is not complementary, and will be visible from the Penshurst railway station and beyond. * The addition of ramps, removal of the existing driveway, and inadequate car parking are at odds with the local area which is best exemplified by the historic property 'Kintail' located close by. 1. Mr Ferguson, owner of No 14 Pacific Avenue, provides written submissions at Exhibit 2, Tabs 21 and 82, and oral submissions that may be summarised as follows: * The State Environmental Planning Policy under which the application is made is itself under review and subject to change. * All the issues typically associated with boarding house development are evident in this application. * The three development applications should be assessed as one development to understand the cumulative impact on the area. * Height poles erected by Mr Ferguson, and pictured in written submissions, illustrate the extent of overlooking likely to result in the rear yards of properties fronting Pacific Avenue. 1. Mr Mead, owner of No 16 Pacific Avenue, provides written submissions at Exhibit 2, Tabs 63 and 81, and oral submissions that may be summarised as follows: * Vehicular access in Pacific Lane is difficult, which is shown in images contained in written submissions. * The condition of the lane will be degraded by construction traffic. 1. The site is located within the R2 Low Density Residential zone in accordance with the Kogarah Local Environmental Plan 2012 (KLEP), in which boarding house development is permitted with consent and wherein the objectives of the zone are as follows: • 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. 1. The site is also located in the Penshurst Heritage Conservation Area (Penshurst HCA), as identified in Schedule 5, Part 2 of the KLEP. 2. The Laycock Road street trees are identified as an item of local heritage significance (I138) in Schedule 5, Part 1, as is the site opposite the subject site on Laycock Road on which two large elevated water reservoirs and associated pumping station are evident (I139). The application is amended 1. On 12 March 2021, the Applicant filed a Notice of Motion with the Court for further amended plans that are said to result from the joint expert reports filed in the matter. 2. On 23 March 2021, the Applicant sought case management at which I directed the Notice of Motion to be listed at 12pm on the first day of the hearing. 3. At the commencement of the hearing, Mr Lazarus SC, counsel for the Applicant, sought to rely upon amended plans in each of the proceedings that were filed on 22 March 2021 under separate affidavits in the name of Ms Kate Marginson. 4. The application for leave to amend the application and rely upon amended plans was not opposed by the Respondent, subject to costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the EPA Act. 5. However, the Applicant also sought orders from the Court that experts in town planning, heritage, traffic, arboriculture and stormwater be directed to confer which was opposed by the Respondent on the basis that further conferring was difficult given the availability of experts, and given the proceedings had commenced. 6. In particular, the Respondent objected to the traffic experts conferring on matters that were not particularised other than in broad terms, and the substance of which was yet to be served on the Respondent. 7. Upon the particularising of those matters by Mr Lazarus, I was satisfied that the additional material on which the traffic experts were proposed to confer arose from the joint report and was, on the whole, capable of being considered within the duration of the hearing. 8. Accordingly, I directed that the experts confer on the 'Rev OO' plans the subject of the Notice of Motion, for which leave was granted, and provide supplementary written reports as soon as possible, but no later than 10am Tuesday, 30 March 2021. 9. It is also helpful to record here that the Applicant tendered three Court Books that comprised the majority of documents relied upon. * The Court book in respect of Lot 9 (Proceedings No 2020/208037) was marked Exhibit B. * The Court book in respect of Lot 10 (Proceedings No. 2020/208038) was marked Exhibit C. * The Court book in respect of Lot 11 (Proceedings No. 2020/208036) was marked Exhibit A. 1. To ensure the parties had sufficient time to consider the supplementary reports, I also directed that the proceedings be listed for a later start on the second day. 2. In the course of events, there was insufficient time for closing submissions to be heard orally within the time allocated for the hearing, and I directed that the parties file written submissions within a timeframe that was later subject of applications for leave to extend. * The Applicant's written submissions (AWS) were filed on 23 April 2021 * The Respondent's written submissions (RWS) were filed on 14 May 2021 * The Applicant's written submissions in reply (AWSR) were filed on 3 June 2021. Expert evidence 1. The Court was assisted by experts in a number of disciplines that conferred in the preparation of joint expert reports. As stated earlier, the Court directed that the experts further confer following the grant of leave for amended plans marked Rev OO, and supplementary joint expert reports were also filed. 2. The Applicant's experts are Mr Anthony Betros (town planning), Mr John Oultram (heritage), Mr Peter Castor (Aboriculture), Ms Meg Kong (traffic) and Mr Billy Adzioski (stormwater). 3. The Respondent's experts are Ms Linley Love (town planning), Mr Paul Davies (heritage), Mr Craig Kenworthy (Aboriculture), Mr Craig McLaren (traffic), and Ms Priyani Jayaweera (stormwater). Boarding house development in an R2 zone – cl 30AA 1. The Respondent contends that the applications, individually and collectively, represent an over-development on the site(s) with adverse impacts on the streetscape and character of the local area, in contravention of certain provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP). 2. In particular, the Respondent's position is that the Applicant seeks to capitalise on the historical anomaly of three lots extant on the site to propose three separate boarding houses that comprise a total of 15 boarding rooms, two manager's rooms and three communal rooms which contravenes the limit of 12 boarding rooms permitted in an R2 zone by cl 30AA of the Affordable Housing SEPP. 3. The Respondent considers the three applications to be inter-dependent in the manner in which access, fire protection and structural support are shared between the proposed developments on the lots. 4. Consequently, the developments the subject of the three development applications contain a number of boarding rooms that, when considered together, exceed the number allowed for development in the zone, and generates a cumulative bulk and scale that is out of character. 5. The Applicant submits that even if the developments proposed to Lots 10 and 11 were considered to be a single boarding house development, the number of boarding rooms are fewer than the limit imposed by cl 30AA of the Affordable Housing SEPP, but for the removal of doubt, the Applicant would accept a condition of consent requiring development of the application on Lots 10 and 11 to be undertaken together. 6. I accept the Applicant's invitation to consider the proposed developments on Lots 10 and 11 to be considered together. In fact, for the following reasons, I cannot see that it is possible for development of the two to be considered, or undertaken, in isolation: 1. Firstly, as I understand the applications before the Court, the works required to provide privacy and fire protection in Proceedings No 2020/208036, relies upon the grant of consent in Proceedings No 2020/208038. This is because the developments proposed for Lots 10 and 11 are predicated upon the partial retention of the existing dwelling whose fabric is, in effect, proposed to be shared. For example, existing doorway openings on Lot 10 are required to be blocked up in order for the development on Lot 11 to achieve privacy and fire protection. 2. Secondly and relatedly, the entrance to the existing dwelling and its associated hallway, which is proposed to be retained to provide access and egress to the development on Lot 11 only, partly encroaches on Lot 10. This gives rise to a non-compliance with the National Construction Code (NCC), identified on p 11 of the report prepared by Credwell dated 22 January 2021 (Exhibit C, Tab 22) for which a performance solution would be required at the Construction Certificate stage. 3. Thirdly, as stated in the NCC assessment report prepared for the Applicant by Credwell dated 22 January 2021, Part A7 of the NCC requires the developments on Lots 10 and 11 to be considered as a single united building (Exhibit A, Tab 22, p 4). 4. Fourthly, the ground floor plans (Exhibit A and C, Tabs 27) show access from carparking on Lot 10 to be dependent upon lift access located on Lot 11, and communal open space linked by access that permits free movement of people between Lots 10 and 11. 1. For the reasons set out above, I also accept the Respondent's submission at p 3 of the RWS, that easements in favour of Lots 10 and 11 would appear to be required to ensure means of access and management into the future, and particularly so if the development relies upon the existing allotment boundaries that are not aligned to the proposed footprint of the boarding houses that are said by the Applicant to be separate. 2. That said, I also accept the Applicant's submission that the total number of boarding rooms proposed on Lots 10 and 11, if considered a single united development, does not exceed the limitation imposed by cl 30AA of the Affordable Housing SEPP. Character of the local area 1. The compatibility of the proposed developments with the character of the local area is addressed by both the planning and heritage experts, who are generally agreed that the local area relevant to the Court's consideration includes properties to the south of the site, along Laycock Road up to and beyond the heritage item known as 'Kintail', and to the north west of the site, extending to parts of Railway Parade. 2. Mr Betros considers the character of built form to be somewhat mixed, with a former shop, two residential flat buildings and the elevated water reservoir site located in the immediate vicinity. 3. It is in this context that Mr Betros considers the front and side setbacks, and the height of the proposed developments, to appropriately take their cues from the somewhat mixed streetscape, and from the existing forms at No 25 Laycock Road, and the single storey presentation of No 29 Laycock Road in particular. 4. According to Ms Love's written evidence (Ex 6, p23), the residential character of the area is low density, predominantly single storey dwelling houses, with landscaped front and rear yards, and side setbacks that provide separation between buildings. 5. This is in similar terms to the heritage assessment undertaken by Mr Michael Edwards (Exhibit 2, folio 340) which describes the character, relevantly, as follows: "…the prevailing single storey character and form of detached style housing in the streetscape, with dwellings set within generously proportioned landscaped garden settings with clearly defined separation between buildings." 1. Similar characteristics are identified in Mr Davies' written evidence at pp 10-11 of Exhibit 6, and Mr Davies identifies inconsistencies with the character in the proposed development at Lot 9, and at Lots 10 and 11. 2. In contrast, Mr Oultram observes at par 3.79 of Exhibit 3, that there are no significant views or side plantings along side boundaries on Lots 10 or 11 due the narrow side passages and the existing garage. 3. The Kogarah Development Control Plan 2013 (KDCP) describes the relevance of the Penshurst HCA, being an aspect of the local area, in the following terms (Exhibit 2, folio 258): "… The precinct possesses streetscape integrity due to it being largely developed during a single period. The area has a uniform housing character which is displayed in its original fabric, scale, form and architectural details that gives the area a harmonious appearance. The predominance of California Bungalows shows the importance of the American influence on housing and lifestyles in the Inter-War Period. The area has a large number of 1930s bungalows what are excellent examples of middle class housing of the Inter-War period. The Penshurst Heritage Conservation Area reflects the availability of finance enabling the middle class to borrow money and finance the purchase of a house and epitomises the great diversion of funds in Australia from private investment in industry and infrastructure to "non-productive" investments in private housing." 1. The Respondent considers the character of the area to be also partly defined by mature tree canopy, to which the site makes a contribution by the backdrop of trees on the site that are evident from both Laycock Road and Pacific Lane. In support of this position, the Respondent cites the aerial image on p 6 of Appendix B1 to the KDCP (Exhibit 2, folio 257), re-produced below (approximate location of the subject site marked with a star). 1. It is commonly held by the heritage experts that while each of the lots front Laycock Road and Pacific Lane, and the area is a heritage conservation area, greater weight is deserving to the Laycock Road frontage. 2. According to Mr Davies, the two-storey scale of the proposed development fronting Laycock Road on Lot 9 is appropriate, although the lightweight cladding to the first floor is not supported, and features such as the canopy over the entry are described as 'awkward'. Furthermore, the 'breezeway' to the southern side setback is less than 1m from the boundary and is surrounded by blockwork and so is unlikely to read in a consistent manner with the front yard landscaping that is so characteristic of the area. 3. Mr Oultram considers the side setback to be dimensioned appropriately and proportionately given the narrow width of the Lot, and states that the lift lobby servicing the breezeway is set back a generous distance from the front setback. 4. The Rev OO plans for proposed developments on Lots 10 (Exhibit C, Tab 27) and 11 (Exhibit A, Tab 27) were considered by the heritage experts as a unified building for the purposes of their oral evidence. 5. Mr Davies notes that the Rev OO plans indicate around 75% of the existing dwelling at No 29 Laycock Road is proposed to be demolished, albeit partially reinstated via such components as the roof. The result will be a form that is similar to the existing dwelling, considered a contributory building in the Penshurst HCA, but will be viewed in a different context given the intensification of the development proposed, including the number of ramps leading from the Laycock Road footpath to the entrance of the three proposed developments. 6. It is Mr Oultram's view that the extent of demolition proposed is similar to that commonly undertaken with older properties. It retains the front four rooms, with around one third of the existing dwelling demolished, and is reinstated in a manner that is consistent with the character of the Penshurst HCA, and Laycock Road in particular. 7. According to the Applicant, consideration of character embraces both the existing character evident in the local area, and the desired future character that is determined by the relevant planning controls. 8. In terms of the former, it is generally agreed by the experts that exceptions to this character are evident at Nos 21-25 Laycock Road, and in certain properties on Railway Parade where smaller, narrower blocks, with limited or zero side setbacks can be found. 9. In terms of the latter, the Applicant submits that the proposed developments, separately and collectively, comply with height and floor space ratio (FSR) standards and so are consistent with the desired future character. Additionally, owing to this fact, the proposed developments cannot be refused on the basis of density or scale, pursuant to cl 29(1) of the Affordable Housing SEPP. 10. In the AWS, the Applicant submits that the Court is also precluded from refusing the applications before the Court on the grounds of density or scale, even if those matters are considered under the rubric of cl 30A of the Affordable Housing SEPP. 11. Mr Betros considers the proposal to be consistent with the 2-3 storey height permitted by the controls, and to adopt an appropriate response to the zero setback of the former shop building at No 25 Laycock Road. 12. While Ms Love acknowledges that no provision of the KLEP is breached by the proposed developments to Lots 9, 10 or 11, the concept of over-development, and character are, according to Ms Love's oral evidence, broader than that determined by height and FSR alone. 13. For instance, the balance of built form and landscape proposed in the front setback, the loss of significant tree canopy and extent of site coverage depicted in Exhibit 9 all contribute to a result that is incompatible with the existing and desired character of the local area. 14. This is further demonstrated when the proposed developments are viewed from Pacific Lane, which Ms Love accepts is a service lane dominated by garaging. However, as the sightline from the lane will not perceive the open area between the front and rear buildings, the result will appear an almost continuous two-storey built form, absent the visual relief provided by landscaping. 15. Likewise, Mr Davies considers the cumulative effect of the proposed developments on the three lots results in a two-storey built form that spans the combined width of 18m which is unlike anything currently evident in Pacific Lane. Furthermore, the form is unrelieved by any more than a minimal setback to the first floor over the garages below, and with window sills proposed at 1600mm high which, when the raked awnings over are also considered, is likely to result in limited outlook that provides poor amenity for occupants. 16. According to Mr Betros, the rear lane presentation of studios located above garages is consistent with the KDCP, improves the built form evident in Pacific Lane currently, and minimises the visual bulk and scale in its use of materials and finishes. As proposed, the built form is an improved outcome from that for which consent was granted in 2017 to development on Lots 9-11, in that the terraces proposed in 2017 were located over the ground floor garages and provided an opportunity for overlooking to the rear of properties fronting Pacific Avenue that is not possible now given the high window sill, and raked awnings over. 17. Provision for car parking, bicycles and motorcycles is made in three garages opening on to Pacific Lane, below the studios that the Respondent contends is inadequate when considered against the 'must not refuse' provisions at cl 29(2)(e) of the Affordable Housing SEPP. 18. To this end, the development applications are supported by a letter from Rebecca Pickstone, Chief Operations Officer of HomeGround Real Estate Sydney ('HomeGround') (Exhibit 2, Tab 25), which the Applicant relies upon as evidence that the applications before the Court are to be carried out by, or on behalf of, a social housing provider. 19. As the site is within an accessible area, the Applicant provides 0.2 parking spaces for each boarding room and considers the provisions of cl 29(2)(e)(i) of the Affordable Housing SEPP to be satisfied, and so consent may not be refused on the grounds of car parking. 20. The letter states that HomeGround is a social enterprise of Bridge Housing Limited, and confirms that "all properties will be managed in accordance with the Seniors Living State Environmental Planning Policy, the NSW Affordable Housing Guidelines and any final development conditions from Council", and attaches a final draft managing agency agreement. 21. Leaving aside reference to the "Seniors Living State Environmental Planning Policy" that does not apply in the circumstances of this case, I do not consider the letter from HomeGround to constitute evidence that the development applications before the Court are made by, or on behalf of HomeGround, or Bridge Housing. Instead, the letter appears to clearly state that the relationship between Bridge Housing and the Applicant is limited to the possible management of the developments, should consent be granted. 22. Consequently, as the developments the subject of the development applications are not to be carried out by, or on behalf of, a social housing provider, the calculation required in order for the Court to be restrained from refusing consent on the basis of car parking is 0.5 spaces per boarding room. 23. A shortfall in parking is identified in the Amended Statements of Facts and Contentions applicable to each of the Lots (Exhibits 10, 11 and 12), and is the subject of written submissions in closing. However, for reasons that follow, it is not necessary to consider this aspect further, or make a determination on this basis. 24. Likewise, while oral evidence was heard from the traffic experts, it is not necessary to summarise their evidence here. The development is not compatible 1. Where boarding house development complies with the FSR standard set out at cl 29(1) of the Affordable Housing SEPP, the Court cannot refuse the application on the basis of density or scale. 2. Section 4.15(2) of the EPA Act provides that where a proposal complies with non-discretionary development standards in an environmental planning instrument, as is the case in this matter, a consent authority, or the Court on appeal, must not take those standards into further consideration in determining the development application, must not refuse the application on the ground that the development does not comply with those standards, and must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards. 3. The applications before the Court comply with the 'must not refuse' provisions set out in cl 29(1) and (2), but for solar access, front landscaped area and parking on which evidence was heard. 4. Clause 30A of the Affordable Housing SEPP applies a different test to that at cl 29. It 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. 5. The Respondent cites the reasoning of Commissioner Dixon, as she was then, in Kevin Gregory and Patricia Gregory v Central Coast Council [2017] NSWLEC 1400 ('Gregory and Gregory') as to the independent operation of cll 29 and 30A of the Affordable Housing SEPP. As observed by the Commissioner, whereas the focus of the text of cl 29 is on compliance with the height and FSR standard, the text of cl 30A contains no limitation on the matters to which the Court may have regard in considering the design of the development for the comparative exercise under cl 30A (Gregory and Gregory at [18]). 6. I adopt and follow the distinction made by the Commissioner between cll 29 and 30A. 7. That said, I also note that cl 30A is not worded as a prohibition on the grant of development consent, and so I accept that even if I conclude, on the basis of the evidence before me, that the design of the development is not compatible with the character of the local area, the grant of development consent is not precluded by that fact alone. 8. The local area relevant to the Court's consideration of character is identified by the experts at [45], and the site is within the Penshurst HCA, in respect of which certain characteristics, according to Ms Love and Mr Davies, are set out at [48] and [50], and as it is put in the KDCP, at [52]. 9. Properties that depart from the predominant character in the local area are agreed between the experts at [61], due in part to limited or zero setbacks. In the case of Lots 9 and 10 in particular, the heritage experts are divided on the side setbacks as summarised at [55]-[56]. 10. I prefer and accept Mr Davies' opinion on the character of the proposed development when viewed from Laycock Road. In particular, I consider Mr Davies' evidence on the form and effect of the side setback on Lot 9 the most considered of the experts because it is informed by reference to the function of the built form on the boundary, described as a breezeway; the materials forming the breezeway, the dimension of the setback, and the extent of landscaping made possible in the front setback. 11. Mr Betros simply states that the 2-storey scale of Lot 9 on the northern side of the front setback is suitably setback and designed to achieve compatibility (Exhibit 6, p38). 12. Mr Oultram also considers the form of the breezeways on Lots 9 and 10. His initial evidence is that the breezeway to Lot 10, abutting Lot 9 is either an 'open access porch' (Exhibit 6, p 19), or one that is 'open and in brick with metal infill panels' (Exhibit 3, par 3.58). 13. Mr Oultram also finds the visibility of the lift lobby servicing the breezeway on Lot 9 to be acceptable because of its setback from Laycock Road, and the narrow width of Lot 9. 14. On the basis of the expert's evidence, I find the proposed built form identified in this particular location demonstrates two aspects that cannot be said to be common to the local area: 1. Firstly, a two-storey breezeway form with a setback of between 0 and less than 1m to the allotment boundary shared with Lot 10; and 2. Secondly, a passenger lift that is also built on the allotment boundary and which is, according to Mr Oultram, visible from Laycock Road through the transparent enclosure of the breezeway, to the lift, and which would presumably also extend to the interior of the lift when the doors are open, and occupants are entering or exiting. 1. Additionally, the location of the breezeway form on Lot 9 coincides with a similar built form on Lot 10 that is also built to a zero setback on the same allotment boundary. 2. As the proposed development on Lot 9 is visually joined to that on Lot 10, it follows that the development on Lot 9 is also joined with that of Lot 11, given Lots 10 and 11 share the built form of the existing dwelling. This effect is shown on the Laycock Road Streetscape Elevation Drawing No.243 Rev OO (Exhibit C, Tab 27). 3. When considered together, the two breezeway forms abut at the boundary between Lots 9 and 10 to form a visually contiguous development unrelieved by void between when viewed in elevation from Laycock Road. The arrangement does not provide for views between the buildings as suggested in the Applicant's submissions in closing (AWS, par 66), and which is held by the Respondents' experts to be an aspect or feature of the local area. 4. For the reasons above, I also accept Ms Love's evidence that this form of street presentation, comprising the abutting breezeway forms and the arrangement of planter beds and paths is an inappropriate balance of built form and landscape that is incompatible with the existing character of the local area. 5. In arriving at my conclusion, I have considered the degree of 'mix' in the character evident in the local area as observed during the onsite view, and the character of the Penshurst HCA identified in the statement of relevance set out at [52]. In no part of the local area is a passenger lift a visible part of the streetscape presentation. 6. In considering whether Nos 21-25 Laycock Road should be considered a factor in the form and character of developments of the subject sites, I note that the three properties are a former shop, and two residential flat buildings, and so their departure from the otherwise low density residential character are explained, and should not provide a template or precedent, in my view. 7. For the reasons that follow, I also conclude that the abutting of the breezeway forms imposes unreasonable impacts on the amenity of residents of development on Lots 9 and 10. 8. As identified by the Court during the experts' evidence, the co-location of the breezeway forms, and the openness of their enclosure to the boundary presents the opportunity for sightlines between residents and visitors to the boarding house development at Lots 9 and 10. 9. A resident or visitor on Lot 10, standing at the breezeway entry, would have a direct sightline, through the breezeway entry on Lot 9, into the private entry and bathrooms of Rooms 1.03 and 1.04 in the development on Lot 9, and to those using the stairs between those rooms, that provides access to the rooms on Level 2 of the development on Lot 9. 10. Likewise, a resident or visitor standing in the breezeway entry of the development on Lot 9 has a sightline to the breezeway, stairs and lift located in the development on Lot 10. 11. While sightlines from common areas into private space may be an acceptable arrangement within a development where residents co-habit and are known to each other, the developments the subject of the development applications before the Court are separate and distinct. 12. I consider the proposed residents of Lots 9 and 10 are deserving of privacy from the residents of adjoining development, and their visitors. The proximity and openness of the breezeway forms does not permit such privacy. 13. While my preliminary view is that the proposed developments on Lots 9 and 10 are incompatible with the character of the local area, I will now consider the proposed removal of Tree 4 on Lot 10, and the potential impact of the development on Tree 3 which are both said by the Respondent to also contribute to the character of the local area. 14. The development applications propose the removal of certain trees on the site. Four trees, identified as Trees 1, 2, 3 and 4 were the particular focus of expert oral evidence. 15. The Respondent cites the Applicant's own arboricultural assessment by Naturally Trees dated 17 June 2019 (Exhibits A, B and C, Tab 5) to submit that Trees 2, 3 and 4 are rated as having high significance, are suitable for retention for more than 10 years and are worthy of being a material constraint on development. 16. In the alternative, at the very least, the Australian Standard AS4970-2009 requires investigative techniques such as root mapping where proposing development in the vicinity of trees exceeds a threshold of 10% in the Tree Protection Zone (TPZ). This has not been done. 17. The question arising from the contentions in respect of Tree 3 and Tree 4 is whether the extent of excavation within the TPZ to Tree 3 places it, a mature Norfolk Pine, at risk and whether consent should be granted for the removal of Tree 4, a mature Turpentine. 18. The Respondent cites the provisions of Part B2 of the KDCP which deal with Tree Management and Green Web, including relevant objectives: "(a) Ensure the protection of existing trees which contribute to the visual amenity and environment of the City of Kogarah. … (d) Protect trees within and adjacent to development sites. (e) Maximise healthy tree canopy coverage across the City of Kogarah … (j) Provide a means for the community to minimise the impact on natural assets/areas affected by development actions on private land." 1. Matters to be considered when determining an application for tree removal are set out at Part B2 Section 1.2 of the KDCP and include, relevantly: "1. The existing and likely future amenity of the area. … (iv) Is the tree prominent due to its height, size, position, or age; (v) Is the tree endemic, rare, or endangered; (vi) Does the tree provide a significant visual screen; (vii) Is the tree part of an important wildlife habitat … 3. The physical characteristics of the tree - This includes the current and potential height, branch spread, trunk diameter, the growing environment and life expectancy." 1. Relatedly, Part B2 Section 1.3 provides that: "… Where an application proposes the removal of substantial trees, the applicant is required to demonstrate that an alternative design, achieving the retention of any tree(s), is not feasible. It must also be proven that it is not possible to provide adequate clearance between the tree(s) and the proposed building envelope and/or any structures/hard surfaces." 1. The Applicant submits that a prior development consent, granted in 2017 (the 2017 consent) (Exhibit F) provided for the removal of Trees 1, 2 and 4 and Mr Castor believes that the removal of those trees from the site will aid the health of Tree 3 by reducing competition for resources. 2. In his oral evidence, the Applicant's arborist, Mr Castor, agrees that Council's Tree Management Policy requires an assessment of any tree over 3m in height, but his engagement was limited to an assessment of Tree 3 only. His evidence in respect of trees other than Tree 3 is based upon the assessment undertaken by Naturally Trees dated 17 June 2019. The risk posed to Tree 3 1. At the onsite view, the Court's attention was drawn to a series of low walls and other structures in the immediate vicinity of the trunk of Tree 3, including a brick garage at No 31 Laycock Road. 2. At a further distance, between Tree 3 and Pacific Lane, is an existing in-ground swimming pool that the experts agree would have constrained the growth of roots in that direction. 3. Mr Kenworthy considers Tree 3 to be the most important tree on the site, and is concerned that the extent of excavation and, to a lesser degree the extent of decking, footings and other works within the TPZ, places the ongoing retention and viability of Tree 3 in some doubt. 4. Mr Kenworthy prepared an overlay plan highlighting the extent of excavation proposed by the developments on Lots 9, 10 and 11 marked Exhibit 10, which, in his assessment, equates to an incursion in to the TPZ of Tree 3 of 35.3%. 5. The experts agree this incursion could be greater if the excavation for the garage walling is battered on an incline, and not vertical as shown on architectural drawings. 6. I note that the arborists' assessment undertaken by Naturally Trees (Exhibit C, Tab 5) identifies an incursion of up to 10% into a TPZ to be considered acceptable. 7. According to Mr Castor, there is no change in the TPZ in the direction of No 31 Laycock Road, and the plan at Exhibit 10 suggests a 'break out' zone that would permit the continued growth of roots within the TPZ in the direction of No 25 Laycock Road. 8. Additionally, Norfolk Pines are a hardy species able to withstand modification to its surroundings. 9. I prefer and accept Mr Kenworthy's evidence as to the viability of Tree 3 given the extent of excavation proposed within the TPZ in both plan and section (that is, the depth at which excavation is depicted in section) depicted in the diagrams contained in Exhibit 10, re-produced below. In particular, I consider the extent of excavation shown to be required to accommodate car parking, lifts, stairs, onsite detention and the like to the south west of Tree 3's TPZ to be highly invasive. 1. While Mr Castor is satisfied that a 'breakout' zone to the north of Tree 3 would allow the continued growth of roots, this observation is made without the benefit of root mapping, and where the acknowledged overall incursion into the TPZ is more than 3 times that generally considered acceptable. The removal of Tree 4 1. The experts agree that Tree 4 is part of more than one endangered, or critically endangered ecological communities (EEC), including the Sydney Turpentine Ironbark Forest (STIF). The assessment undertaken by Naturally Trees classifies Tree 4 as of high significance, with a rating of A2. 2. Mr Castor identifies major branch failure that may result from storm damage, and which Mr Kenworthy believes can be rectified through pruning. 3. Mr Castor considers the TPZ of Tree 4, said to be either 10.8m, according to the Respondent, or 15m, according to the Applicant, to be an impediment to development, if retained, and is likely to assist Tree 3 if removed, for the reasons stated at [112]. 4. I prefer and accept Mr Kenworthy's evidence in respect of Tree 4 that damage evident to the tree is able to be rectified by pruning. This is consistent with the assessment of Tree 4 undertaken by the Applicant's arborist as having a rating of 'A2' which is described in Appendix 3 of the Naturally Trees Assessment as 'Minor defects that could be addressed by remedial care and/or work to adjacent trees'. 5. While the Applicant maintains that consent for removal of Tree 4 has been granted prior to the application now before the Court, having regard to Part B2 Section 1.2 of the KDCP, I consider Tree 4 to be prominent, to be a species nominated as part of an endangered EEC and, on the basis of the statement at p 7 of the Naturally Tree assessment, to be of good health and condition. 6. As the Court exercises the functions and discretions of the Council on appeal, I have considered the grounds on which a permit may be granted for the clearing of vegetation in accordance with cl 10 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. For the reasons stated at [127], I am not satisfied that the removal of Tree 4, which is a species part of an EEC, and located within the Penshurst HCA, is of a minor nature or is for the maintenance of the heritage item or heritage conservation area. 7. For the reasons set out at [122]-[123], I find the likely impact of the proposed development on the TPZ of Tree 3 on Lot 11 to be unacceptable, and for the reasons set out at [127]-[129], I do not consider there to be grounds to permit the removal of Tree 4 from Lot 10. 8. I also accept the Respondent's submission that the tree canopy is an element of the character of the local area, and the removal of Tree 4, and the risk posed to Tree 3, would result in development that is inconsistent with the local character. The 2017 consent 1. I have also considered the 2017 consent (Exhibit F) that the Applicant relies on as a like development for which consent had previously been granted. 2. While an initial read of the architectural plans suggest a similar arrangement in the built form to the Laycock Road frontage, and rear garages to Pacific Lane, I consider the 2017 consent to be of limited assistance for the following reasons: 1. The Court is required to consider the developments the subject of the development applications, and not some other development the subject of some other development application. 2. The type of development is different. The 2017 consent is for two dwellings (and a secondary dwelling) which I consider to be distinct from three boarding houses occupied by boarders unlikely to be related, or to share common facilities and resources in the manner of a dwelling house. 3. The central landscaping is predominantly decked, ramped and balustraded, interspersed with lifts and stairs, unlike that shown in the 2017 consent. Put another way, the built-upon area, as depicted in Exhibit 9, is a significant departure from the proposal the subject of the 2017 consent. 4. Where the 2017 consent offered visual separation between Lots 9 and 10 through which a sightline was possible, the mirror reflected breezeways, blockwork and lift shaft serves to visually intensify the developments at Lots 9 and 10 (and Lot 11 given the contiguity of the development fronting Laycock Road). 1. On the basis of the streetscape impact of the developments proposed on Lots 9 and 10 summarised at [91]-[97], and the likely impact on Tree 3 of development proposed on Lots 9, 10 and 11, I find the proposed developments incompatible with the character of the local area as required by cl 30A of the Affordable Housing SEPP. 2. I have also considered the effect of the proposed developments on the Penshurst HCA in accordance with cl 5.10 of the KLEP and, for similar reasons as stated above, I conclude that the proposed developments on Lots 9, 10 and 11 are so inconsistent with the streetscape form evident in the heritage conservation area that the effect of the proposed development would be to the detriment of the Penshurst HCA. 3. Furthermore, as I find there are insufficient grounds to permit the removal of Tree 4 from Lot 10, it is my conclusion that the proposed developments on Lots 9, 10 and 11 should be refused, and that all three appeals should be dismissed. Orders Proceedings No. 2020/208036 1. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely upon amended plans at Exhibit A, Tab 27, subject to costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Development consent for Development Application DA 2020/0162 on Lot 11 in DP 11098 for the removal of two trees, earthworks including excavation of approximately 4.3m at the rear of the site, and construction of two buildings consisting of a two-storey building at the rear of the site (containing one residential level above a double garage fronting Pacific Lane, and a two-storey building at the front of the site containing two residential levels) is refused. 4. All exhibits are returned, except for Exhibits A, 1, 9 and 10. Proceedings No. 2020/208037 1. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely upon amended plans at Exhibit B, Tab 27, subject to costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Development consent for Development Application DA 2020/160 on Lot 9 in DP 11098 for the demolition of part of the existing dwelling house, and all improvements, removal of three trees, earthworks including excavation of approximately 4.3m at the rear of the site and construction of two buildings consisting of a two-storey building at the rear of the site (containing one residential level above a double garage fronting Pacific Lane, and a two-storey building at the front of the site containing two residential levels) is refused. 4. All exhibits are returned, except for Exhibits B, 1, 9 and 10. Proceedings No. 2020/208038 1. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely upon amended plans at Exhibit C, Tab 27, subject to costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is dismissed. 3. Development consent for DA 2020/0161 on Lot 10 in DP 11098 for the demolition of part of the existing dwelling, and all improvements, removal of one tree, earthworks including excavation of approximately 4.3m at the rear of the site, and construction of two buildings consisting of a two-storey building at the rear of the site (containing one residential level above a double garage fronting Pacific Lane, and a two-storey building at the front of the site containing two residential levels) is refused. 4. All exhibits are returned, except for Exhibits C, 1, 9 and 10. ………………….. 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: 30 June 2021