Land and Environment Court New South Wales Medium Neutral Citation: Level 1 Construction Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1405 Hearing dates: 28-29 June 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Leave is granted to the applicant to amend the development application to rely on the consolidated set of architectural plans dated June 2021 contained in Ex E. (2) The appeal is upheld. (3) Development consent is granted for the demolition of existing structures and the construction of a mixed use development comprising a multi dwelling housing development with 9 dwellings and a neighbourhood shop, at 29-31 Helen Street, Sefton, subject to the conditions in Annexure A. (4) The exhibits are returned, except for Exhibits A, C, D and E. Catchwords: APPEAL – development application – in fill affordable housing under the SEPP – whether proposed development can be characterised as multi dwelling housing – the application of the Low Rise Housing Diversity Design Guide – compatibility with the character of the local area – setbacks – adequacy of private open space – solar access – density – visual privacy – amenity for future residents and neighbours Legislation Cited: Bankstown Local Environmental Plan 2015 cll 1.4, 4.1B Environmental Planning and Assessment Act 1979 s 8.7 Environmental Planning and Assessment Regulation 2000 Sch 1 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 4, 10, 13, 14, 15, 16A State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 1.5 State Environmental Planning Policy No 55 – Remediation of Land cl 7 Cases Cited: Blackmore Design Group Pty Limited v Manly Council [2014] NSWLEC 164 Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121 Mount Annan 88 Pty Ltd v Camden Council [2016] NSWLEC 1072 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Texts Cited: Bankstown Development Control Plan 2015 Low Rise Housing Diversity Design Guide Canterbury-Bankstown Council Waste Management Guide for New Developments Category: Principal judgment Parties: Level 1 Construction Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: T To (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2020/283831 Publication restriction: No Judgment 1. COMMISSIONER: Immediately south of the Sefton village centre, at a site with frontage to the intersection of Helen Street, Kara Street and Kerrinea Road, Level 1 Construction Pty Ltd (Level 1) seeks development consent for the demolition of the existing dwelling and the construction of a mixed use development containing a neighbourhood shop and multi dwelling housing. It lodged a development application with Canterbury-Bankstown Council (the Council) on 26 June 2020, which was refused on 18 September 2020. The present proceedings are an appeal by Level 1 against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The proposed development 1. At the commencement of the hearing, leave was granted to Level 1 to amend the development application to respond to matters raised by the Council. Following the hearing, it became apparent that leave ought to be granted to Level 1 to rely on a consolidated set of architectural plans that reflect the leave granted at the hearing. By email of 21 July 2021, the parties agreed to leave being granted to the consolidated set of plans and to those plans becoming an exhibit in the appeal hearing. The consolidated set are dated June 2021, and are now Exhibit E. The proposed development, following the amendments, is for the construction of a multi dwelling housing development with 9 dwellings, together with a neighbourhood shop that addresses the intersection at which the site is located. 2. The application is made under the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and two units are proposed to be dedicated as affordable rental housing. The proposed development includes basement car parking which is accessed by a driveway from Kerrinea Road, and seeks subdivision of the shop and the multi dwelling housing into two stratum lots, and strata subdivision of the stratum lot comprising the multi dwelling housing. 3. Each of the proposed dwellings are accessed from the ground level, and the dwellings are divided between two buildings. One building comprises a single dwelling fronting Kerrinea Road over the driveway entrance, and the other comprises 8 dwellings fronting Helen Street with the shop at the ground floor addressing the intersection. Five of the 8 dwellings within the Helen Street building have floor space on both the ground and first floors, one dwelling is on the first and second floors above the neighbourhood shop, and two dwellings are located on the second floor (third storey). The site plan demonstrating the layout of the proposed development is in Figure 1, and an artist impression of how it will present to the intersection is at Figure 2. A summary of the issues raised and the outcome of the appeal 1. The Council opposes the grant of development consent on a number of grounds. It contends that the proposed development has the urban typology of a residential flat building and is therefore prohibited development in the zone, that the proposed development does not comply with the Low-Rise Housing Diversity Design Guide, and is not compatible with the character of the local area. The Council also contends that there are insufficient setbacks, and that the amenity of the dwellings is not satisfactory as a result of inadequate private open space, inadequate solar access, excess density, and inadequate visual privacy. 2. For the reasons that are set out below, I have determined that each of the contentions advanced by the Council are without merit. The proposed development is for the permissible uses of multi dwelling housing and neighbourhood shop, the design of the proposed development is compatible with the character of the local area and provides the appropriate transition in form and use that is contemplated by the zone objectives and desired future character. I also consider that the setbacks to the neighbourhood shop are appropriate to provide an active street frontage, that the private open spaces for the dwellings are acceptable, and that the dwellings have appropriate solar access, amenity and visual privacy. For those reasons, I have determined that development consent should be granted subject to the conditions of consent proposed by Level 1. The site, the locality and its planning context 1. The hearing commenced with a site inspection, which included viewing the streetscape along Helen Street and Kerrinea Road. The site is known as 29-31 Helen Street, Sefton and comprises two lots legally described as Lots 80 and 81 in DP 16500. It is irregularly shaped, with an area of 1049.6m2 and dual frontage to Kara Street and Helen Street. The site has frontage of 37.55m to Helen Street, 45.575m to Kerrinea Road, a boundary of 40.235m at its southern edge where it adjoins 27 Helen Street, and a boundary of 11.965m at its western edge where it adjoins the adjacent property on Kerrinea Road. Kara Street and Kerrinea Road converge and intersect with Helen Street at the front of the site. An aerial photograph of the site is shown at Figure 3. 1. The site is located in an area that has a number of intersecting land use zones and land uses. Along both sides of Helen Street to the south, and Kerrinea Road to the west, is predominantly one and two-storey detached dwelling houses. To the north, across the intersection, is a four-storey residential flat building. 2. Further north and to the northeast are a range of commercial premises that form part of the Sefton small village centre, and Sefton railway station and the commercial street are located around 120m north of the subject site. An overview of the surrounding commercial and higher density uses is shown at Figure 4. 1. The intersection that the site adjoins is at the junction of four different land use zones. The site is zoned R3 Medium Density Residential under the Bankstown Local Environmental Plan 2015 (BLEP). It is on the edge of the R3 zone, which extends to the south and west of the site. 2. Kerrinea Road and the area to the west of the site is zoned R2 Low Density Residential. The residential flat buildings to the north are located within land zoned as R4 High Density Residential. 3. To the northeast of the site exists a small pocket of business premises with shop top housing, which are all located in land zoned B2 Local Centre, which extends from opposite the site on Helen Street to the rail line where Sefton Railway Station is located. An extract of the zoning map, showing the zoning of the land in the immediate locality, is shown at Figure 5. The relevant planning framework 1. The objectives of the R3 Medium Density Residential zone, to which regard must be had in considering a development application, are as follows: 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area. • To allow for the development of medium density housing that has regard to local amenity and provides a suitable visual transition between high density residential areas and low density residential areas. • To require landscape as a key characteristic in the medium density residential environment. 1. Multi dwelling housing is a nominated permissible use in the R3 Medium Density Residential zone. Residential flat buildings are an innominate prohibited use. 2. At cl 4.1B(2), the BLEP establishes minimum development standards for both lot size and the width of the lot at the front building line. The clause requires, in the R3 Medium Density Residential zone, that the consent authority must not consent to multi dwelling housing unless the area of the lot is equal to or greater than 1000m2, and the width of the lot at the front building line is equal to or greater than 20 metres. The proposed development complies with these standards. 3. Clause 4.3 establishes the height development standard, which, for the site, is 10m. The proposed development complies with this development standard. An extract of the height of buildings map, which shows the height development standard applicable to the areas to the north of the site, is shown at Figure 6. The State Environmental Planning Policy (Affordable Rental Housing) 2009 1. Part 2 Division 1 of the SEPP ARH, which relates to in-fill affordable housing, applies to the development. Clause 10 of the SEPP ARH provides that: 10 Development to which Division applies (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that 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 under the Heritage Act 1977. (2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area. … 1. The site's location meets the definition of an accessible area as a result of its proximity to Sefton Railway Station. 2. As a result of the application of Part 2 Division 1, cl 13 of the SEPP ARH allows an increase in the maximum FSR that applies to the proposal by the percentage of the gross floor area of the development that is used for affordable housing. Based on dwellings T1 and T2 being dedicated to affordable housing, this means that 22% of the gross floor area is being provided as affordable housing and therefore increases the allowable FSR from 0.75:1 to 0.97:1, with which the proposal complies with a FSR of 0.96:1. 3. At cl 14 of the SEPP ARH, a number of standards are established that cannot be used to refuse consent. The first of those standards relates to site area, the result of which is that a consent authority cannot refuse consent based on site area if the site area is at least 450m2. Clause 14(1), as relevant, provides: (1) Site and solar access requirements A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: … (b) site area if the site area on which it is proposed to carry out the development is at least 450 square metres, … (e) solar access if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. … (2) General A consent authority must not refuse consent to development to which this Division applies on any of the following grounds— … (b) dwelling size if each dwelling has a gross floor area of at least— (i) 35 square metres in the case of a bedsitter or studio, or (ii) 50 square metres in the case of a dwelling having 1 bedroom, or (iii) 70 square metres in the case of a dwelling having 2 bedrooms, or (iv) 95 square metres in the case of a dwelling having 3 or more bedrooms. 1. Clause 14 sets out other standards which cannot be used to refuse consent if a specified minimum is met. Those standards concern landscaped area, deep soil zone and the provision of on-site parking. The proposal meets these specified minimums for each of those standards, including the site area of 450m2 and the dwelling sizes, and therefore cl 14 prevents me from refusing the application on any of those grounds. However, there is a dispute concerning whether the criteria for solar access are met. 2. Clause 15 sets out additional design requirements that are required to be considered. It provides as follows: 15 Design requirements (1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the following, to the extent to which they are consistent with this Policy— (a) the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, (b) for development for the purposes of manor houses or multi dwelling housing (terraces)—the Low Rise Housing Diversity Design Guide. 1. In accordance with cl 4 of the SEPP ARH: manor house and multi dwelling housing (terraces) have the same meanings as they have in the Codes SEPP. 1. The Codes SEPP is the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP ECDC), and it provides the following definition for multi dwelling housing (terraces): multi dwelling housing (terraces) means multi dwelling housing where all dwellings are attached and face, and are generally aligned along, 1 or more public roads. 1. For the reasons that are expressed below, the proposed development is not for the purpose of multi dwelling housing (terraces), and therefore the Low Rise Housing Diversity Design Guide is not required to be considered. 2. Clause 16A of the SEPP ARH also prevents a consent authority from consenting to a development "unless it has taken into consideration whether the design of the development is compatible with the character of the local area." The Bankstown Development Control Plan 2015 1. The Bankstown Development Control Plan 2015 (BDCP) applies to the site. At Part A1 Section 4 it sets out the desired future character and controls concerning the Sefton Small Village Centre. In particular, the Sefton Small Village Centre has the following existing character and desired future character: "The Sefton Small Village Centre supports the village centre role of Chester Hill. It is characterised by local shops, shop top housing and a residential transitional area. Local shops are generally single storey with some shop top housing. These shops service the day–to–day needs of residents and workers of the nearby industrial precinct. It is the proximity to the Chester Hill Village Centre which significantly hinders the ability for Sefton to become an independent centre as the centres are in direct competition. The desired character is for the Sefton Small Village Centre to support the residential growth of the Chester Hill Village Centre particularly along Waldron Road, a major public transport corridor. The built form will offer a range of medium and high density living set within a safe and high quality environment, whilst maintaining the low density historic character of Kara Street and Kerrinea Road. The local shops and Birrong Leisure Centre will service the day–to–day needs of residents and workers." 1. This is supported by the structure plan in Figure 2 in Section 4, which is shown at Figure 7 below. 1. Section 8 of Part B1 of the BDCP sets out the relevant controls on multi dwelling housing, and include the following: "SECTION 8–MULTI DWELLING HOUSING Objectives The objectives are: (a) To ensure multi dwelling housing provides a suitable visual transition between high density residential areas and low density residential areas. (b) To ensure multi dwelling housing has regard to local amenity for residents and neighbouring properties in terms of access to sunlight and privacy. (c) To require landscape as a key characteristic in the development. (d) To minimise the visual impact of off–street parking on the streetscape. … Setbacks to the primary and secondary frontages 8.3 The minimum setback for a building wall to the primary and secondary frontages is 5.5 metres. Setbacks to the side boundaries 8.4 The minimum setback for a building wall to the side boundary is 0.9 metres except for east–west orientated allotments of land where the minimum side setback to the southern boundary is 3 metres. The intended outcome of the 3 metre setback is to minimise overshadowing on adjoining properties. … Private open space 8.5 Multi dwelling housing must provide a minimum 50m2 of private open space per dwelling behind the front building line. This may be in the form of a single area or a sum of areas per dwelling provided the minimum width of each area is 5 metres throughout. Density 8.6 The site area per dwelling (excluding the area of access handles or rights of way for access) must not be less than 175 square metres. Access to sunlight 8.7 At least one living area of each dwelling must receive a minimum 3 hours of sunlight between 8.00am and 4.00pm at the mid–winter solstice. Council may allow light wells and skylights to supplement this access to sunlight provided these building elements are not the primary source of sunlight to the living areas. 8.8 At least one living area of a dwelling on an adjoining allotment must receive a minimum 3 hours of sunlight between 8.00am and 4.00pm at the mid–winter solstice. Where this requirement cannot be met, the development must not result with additional overshadowing on the affected living areas of the dwelling. 8.9 A minimum 50% of the private open space required for each dwelling and a minimum 50% of the private open space of a dwelling on an adjoining allotment must receive at least 3 hours of sunlight between 9.00am and 5.00pm at the equinox. Where this requirement cannot be met for a dwelling on an adjoining allotment, the development must not result with additional overshadowing on the affected private open space. Visual privacy … 8.12 Council does not allow multi dwelling housing to have roof–top balconies and the like." 1. Other relevant provisions of the BDCP concerning the controls on waste management are set out further below. 2. Section 3.43(5) of the EPA Act provides that a provision of a development control plan has no effect to the extent that is inconsistent or incompatible with a provision of an environmental planning instrument applying to the same land. It states as follows: (5) A provision of a development control plan (whenever made) has no effect to the extent that— (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument. The expert evidence 1. Expert opinion evidence on the town planning issues was given by Ms Priscilla Prakash, a town planner employed by the Council, and Mr Anthony Betros, a consultant town planner engaged by Level 1. The evidence of Ms Prakash centred upon her opinion that the proposed development has a building typology of a residential flat building, and therefore offered unacceptable amenity, is inappropriate for the site and incompatible with the character of the local area. By contrast, the evidence of Mr Betros is that the proposed development meets the definition of multi dwelling housing and that the provision of above ground private open space and living areas does not generate any unreasonable privacy impacts, and that the amenity of the dwellings is acceptable. Their evidence is considered in further detail below. 2. As a result of the inclusion of garbage chutes for the benefit of six dwellings, expert evidence on the waste issues was given in a joint report by Ms Narelle Bowley, a waste expert employed by the Council, and Mr Gary Dickens, a waste consultant engaged by Level 1. Whereas Ms Bowley considers that garbage chutes are not appropriate for multi dwelling housing, and that the proposed development should be redesigned to provide for a bin bay area from which the Council can provide its collect and return waste service, Mr Dickens instead opines that the chutes and the proposed arrangements for bins to be presented to the kerbside for collection are acceptable. Their evidence is considered further below. Permissibility 1. The Council contends that the proposed development is characterised as a residential flat building, and is therefore prohibited. The basis for this contention is that the definition of multi dwelling housing, which is set out above, excludes residential flat buildings, and the Council argues that the built form of the proposal is of an urban typology better representative of a residential flat building. 2. The definition of multi dwelling housing, and the definition of a residential flat building, are contained in the BLEP and are as follows: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing. 1. Ms Prakash opines that the proposed development "presents both in built form and amenity to residents as an RFB would", and considers that the Council's development controls provide "a clear guide [to] the local urban typology". The Council relies on the hierarchy of permissible development across the various zones in the BLEP, the various breaches of the BDCP, the definition of multi dwelling housing (terraces) in the SEPP ECDC, and the Low Rise Housing Diversity Design Guide to argue that the typology of the proposed development is a residential flat building. In support of the Council's position that the Court can go beyond the wording of the definitions to determine what can inform the definition, Mr Bonanno, the solicitor for the Council, relies on Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121 at [46]-[50]. 2. Mr Bonanno also relies on Hrsto v Canterbury City Council in order to justify a departure from the definition of the land use "multi dwelling housing" that is contained in the BLEP. 3. In its contentions, the Council also raises that the proposed development could also be classified as "shop top housing", which is similarly prohibited in the zone. Shop top housing is defined in the BLEP as "one or more dwellings located above ground floor retail premises or business premises". The proposed development is permissible 1. The Council's contention on this point is unsustainable. Where the proposed development relies upon a nominated permissible use for permissibility, the exercise is primarily one of statutory construction of that nominated permissible use, followed by a consideration of whether the proposed development falls within that construction. In the construction of a local environmental plan, the general principles of statutory construction apply, which allow a particular provision to be construed within the context of an instrument. That is what the Court did in Hrsto v Canterbury City Council. 2. Further, the comments regarding the 'dictionary' within Hrsto v Canterbury City Council (at [49]-[51]), which are relied upon by Mr Bonanno to justify a departure from the definition of the land use within the BLEP, relate to the Macquarie Dictionary, and do not apply to the dictionary within an instrument. The Dictionary in the BLEP is the compilation of defined terms pursuant to cl 1.4, which provides that "The Dictionary at the end of this Plan defines words and expressions for the purposes of this Plan." As such, the comments of the Court in Hrsto v Canterbury City Council do not justify a departure from the plain text of the definition of multi dwelling housing within the BLEP. 3. Further, the terms of the BDCP that are relied upon by the Council and by Ms Prakash as causing the proposed development to be characterised as something other than "multi dwelling housing" are not, in fact, matters that are relevant to either statutory construction or characterisation. They cannot be used to interpret the provisions of the BLEP, including to interpret the meaning of the words "multi dwelling housing". As stated by the Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [46]: "the provisions of a development control plan cannot be used to interpret the provisions of a local environmental plan, unless the provisions of the local environmental plan expressly refer to the provisions of the development control plan for that purpose." 1. The same is true of the Low Rise Housing Diversity Design Guide. A guide for designing particular forms of development cannot be used to inform the statutory construction of a defined term within a local environmental plan. As such, neither the DCP nor the Low Rise Housing Diversity Design Guide can be used to interpret the definition of "multi dwelling housing". 2. The nominated permissible use of "multi dwelling housing" is a defined term, and the definition is clear on its terms. It differs from the definition of "residential flat building" by its distinctive features of having dwellings "on one lot of land, each with access at ground level". Those dwellings can either be attached or detached. The proposed development meets the definition of multi dwelling housing, as the dwellings will all be on the one lot of land, and will each have access at ground level. It matters not that some of the dwellings do not have living areas on the ground floor, as it nevertheless satisfies the definition by having each dwelling accessed by stairs from the ground level. This is the same conclusion reached by Commissioner Brown in similar circumstances in Mount Annan 88 Pty Ltd v Camden Council [2016] NSWLEC 1072 at [21]-[23]. 3. I do not accept the submission of the Council that the hierarchy of permissible development across the various zones in the BLEP changes the way the plain words of the definition of "multi dwelling housing" should be understood and applied. Further, there is nothing in the definition of "multi dwelling housing (terraces)" in the SEPP ECDC, which is a different land use that may be considered a sub-set of "multi dwelling housing", that causes a constraint on the definition of "multi dwelling housing" in the BLEP. 4. Finally, I note that the multi dwelling housing proposed in the development could not fall within the definition of "shop top housing" as it contains dwellings with floor space on the ground level that is not at a level that is higher than the ground floor retail premises: see Blackmore Design Group Pty Limited v Manly Council [2014] NSWLEC 164 at [11]-[13]. 5. Accordingly, I consider that the proposed development is for the purposes of a neighbourhood shop and multi dwelling housing, and is therefore permissible on the site with development consent. The application of the Low Rise Housing Diversity Design Guide 1. The Council contends that the proposed development should be refused on the basis that it does not comply with the Low Rise Housing Diversity Design Guide. It relies on cl 15(1)(b) of the SEPP ARH, which it says prevents the Court, in exercising the functions of the consent authority, from granting development consent unless it has taken the Low Rise Housing Diversity Design Guide into consideration. The Council argues that this is because, if the proposed development is characterised as multi dwelling housing, it is also multi dwelling housing (terraces). The Council submits that the word "generally" in the definition of "multi dwelling housing (terraces)" means that the detachment of dwelling T9 is insufficient to remove the proposed development from the definition of "multi dwelling housing (terraces)". 2. Level 1 instead submits that the definition clearly requires all dwellings to be attached, and that the word "generally" concerns the requirement for the dwellings to be aligned along one or more public roads and does not qualify the requirement for all dwellings to be attached. As not all of the dwellings in the proposed development are attached, Level 1 submits that it does not fall within the definition of multi dwelling housing (terraces). Accordingly, Level 1 submits that cl 15(1)(b) of the SEPP ARH is not engaged and there is no requirement to consider the Low Rise Housing Diversity Design Guide. There is no requirement under the SEPP ARH to consider the Low Rise Housing Diversity Design Guide 1. Contrary to the Council's position, cl 15(1)(b) does not, in fact, compel consideration of the Low Rise Housing Diversity Design Guide with respect to the proposed development. This is because the proposed development does not meet the definition of "multi dwelling housing (terraces)", for the precise reason identified by Level 1 in its submissions. 2. As set out above, multi dwelling housing (terraces) "means multi dwelling housing where all dwellings are attached and face, and are generally aligned along, 1 or more public roads" (emphasis added). It is clear, from a plain reading of this definition, that the words "all dwellings" means that, to meet the definition, the dwellings are all required to be attached. The word "generally" is an adverb that qualifies the verb "aligned", and has no role in qualifying the requirement that "all dwellings are attached". The Council's submission on this point is contrary to the plain reading of the definition, and must fail. 3. For this reason, I accept the position, advanced on behalf of Level 1, that cl 15(1)(b) of the SEPP ARH is not engaged for the reason that the proposed development is not "multi dwelling housing (terraces)". Accordingly, cl 15(1)(b) does not require the Court to consider the Low Rise Housing Diversity Design Guide in the present proceedings. Compatibility with the character of the local area 1. As set out above, cl 16A of the SEPP ARH requires consideration of whether the design of the development is compatible with the character of the local area. The focus of the consideration is on the design of the development, and whether that design is compatible with the character of the local area. In understanding the character of the local area, both the existing character and the desired future character can be contemplated. In Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, Roseth SC made it clear that where the planning controls envisage a change of character, "compatibility with the future character is more appropriate than with the existing" (at [23]). Both Ms Prakash and Mr Betros agree that the local character must be understood in the context of the existing locality, and with a greater emphasis on the future desired character. 2. The Council contends that the design of the development is not compatible with the character of the local area. This contention is advanced on a number of grounds, which were expanded in the course of the hearing. Firstly, the Council says that the typology of the built form is one of a residential flat building, which is a high density development which is not consistent with the low density dwelling houses which form the character of Kara Street, Kerrinea Road and Helen Street. The evidence of Ms Prakash is that this is particularly regarding "the density, FSR, height, bulk and scale proposed". Secondly, the Council says that the provision of a neighbourhood shop is not compatible with the desired future character of the locality. Thirdly, the Council submits that the proposed setbacks, and the fact that they do not comply with the controls in the BDCP for multi dwelling housing, means that the development is not compatible with the character of the area. Fourthly, the Council says that the roof top terraces are similarly not compatible with the character of the local area, in circumstances where such terraces are not permitted under the BDCP and where there are no terraces at present in the local area. 3. Level 1 instead submits that the design of the proposed development is compatible with the desired future character, and that the mixed nature of the existing character of the area is one with which the proposed development is compatible. Level 1 relies on the evidence of Mr Betros, who considers in detail the character of the existing development and how the proposed development will fit within that character, and considers the zoning of the locality and its future character and how the design of the proposed development will also fit within that context (Ex 2, [41]-[53]). The design of the proposed development is compatible with the character of the local area 1. The local area is considered by Mr Betros to include the R3 Medium Density Residential zoned land to the south and east, the R2 Low Density Residential zoned land to the west, as well as the R4 High Density Residential land across Kerrinea Road and the B3 Local Centre zoned land to the north and north east. This is not disputed by Ms Prakash. It is agreed that the R3 zoned area to the south and east, along both sides of Helen Street, is underdeveloped in circumstances where the predominant built form is presently single storey dwelling houses, but the applicable zoning and development standards allow for residential uses of greater density and height. Having regard to both the existing and future character of that local area, I am satisfied that the design of the proposed development is compatible with that character. I reach this conclusion for the following reasons. 2. Firstly, I accept the evidence of Mr Betros that the design is compatible with the character formed by the existing development in the local area. I accept his evidence that there is a variety of built forms, including the residential flat building across the road, single dwelling houses to the south and west, and non-residential uses in the B2 Local Centre zone opposite to the north and north-east. These built forms have varied setbacks, heights and typologies. The proposed 1.5m setback of the neighbourhood shop close to the corner, and its siting adjacent to the corner, is compatible with other shops in Helen Street, which are in close proximity to the site and in the same visual catchment, and have a zero setback. Similarly, the setback of the front building line of the dwellings in the Helen Street building aligns with the front setbacks of the dwelling houses to the south. Further, the orientation of the front building line of the detached building containing dwelling T9 is consistent with the orientation of dwellings along the southern side of Kerrinea Road. The design of the proposed development has therefore drawn from elements in the existing streetscape, which facilitates its compatibility with the existing character of the local area. 3. Secondly, I accept the evidence of Mr Betros that the design is compatible with the dwellings to the south along the western side of Helen Street, and with the dwellings to the west along Kerrinea Road, by providing articulation in the built form that allows a transition to those dwellings. It does so by reducing the height and number of storeys where the built form adjoins the boundary of the residential dwellings, by orienting the building containing dwelling T9 in the same way that dwellings along Kerrinea Road are oriented, and by providing a stepped front setback to the dwellings along Helen Street that is consistent with the existing front setbacks to the south of the site. 4. Thirdly, I accept the evidence of Mr Betros that the proposed development is compatible with the desired future character of the local area. I accept his evidence that the height development standard supports development with a 3-storey scale, with which the proposed development complies, and that it steps down in height to the western neighbouring dwelling at 1 Kerrinea Road, where a smaller height development standard applies. I accept that by providing a height that is consistent with the development standard, the design of the development provides a transition in height between the taller development in the R4 and B2 zones and the development in the R2 and the R3 zones. Further, I accept his evidence that the design of the proposed development incorporates deep soil landscaped setbacks along Helen Street that will be compatible with any potential future medium density housing forms anticipated by the zoning. Further, the incorporation of vertical divisions along the Helen Street façade of the proposed development breaks down its visual bulk, which is typical for multi dwelling housing, a form of development anticipated by the R3 zoning. Similarly, I accept Mr Betros' evidence that the neighbourhood shop is compatible with the desired future character of the area, given that it is a nominated permissible use in the zone and is consistent with the site falling within the Sefton Small Village Centre. Therefore, each of the elements of the built form, and their height, is compatible with the desired future character of the local area. 5. Fourthly, I accept the position of Level 1 that the design of the proposed development provides a transition from the R4 and B2 zones, to the low and medium residential density R2 and R3 zones, in the manner envisaged for the residential transition area identified in the Structure Plan for the Sefton Small Village Centre in the BDCP, and consistent with the objective of the R3 zone to provide "a suitable visual transition between high density residential areas and low density residential areas". Indeed, the site is uniquely placed to provide such a transition in circumstances where the adjoining intersection forms the junction of those four land use zones. I accept the evidence of Mr Betros that the design of the proposed development achieves that transition by the following: * Achieving the full height permitted by the development standard at its closest points to the intersection, which allows a transition from the existing and anticipated taller buildings in the R4 and B2 zones (up to 6 storeys) to the residential buildings anticipated by the lower height development standard and permissible uses in the R2 and R3 zones, and stepping down in storeys to the dwelling at 1 Kerrinea Road where the R2 zone commences, * Providing varied front setbacks that start at 1.5m where the shop is located and increase away from the corner (other than a small portion of zero setback), which allows a transition from the nil setback anticipated for retail uses in the B2 zone to the larger front setbacks for dwellings along both Kerrinea Road and Helen Street and for future redevelopment of Helen Street, * Comprising a form of development that is of a density greater than a dwelling house but less than a residential flat building, and * Accommodating a FSR (0.96:1) that is less than that which applies in the R4 and B2 zone (which ranges from 1:1 to 2.5:1) but greater than what exists and is anticipated for the R2 zone (0.5:1). 1. The transition achieved by the design of the development is visually depicted in the streetscape elevations for both Helen Street and Kerrinea Road (see Ex A Drawing 24). These streetscape elevations demonstrate that the built form is an appropriate transition from the single storey dwellings to the residential flat building opposite the intersection (in the Helen Street elevation), and an appropriate transition from the intersection to the dwellings along Kerrinea Road as the land steps up. 2. Finally, none of the reasons advanced by the Council are persuasive in establishing that the design is incompatible with either the current character or the desired future character. Whilst there is agreed oral evidence that the design could be discerned by the casual observer as a residential flat building, I do not consider that this makes it incompatible with the desired future character or the existing character. As set out above, I have found that the design of the built form draws on existing elements in the streetscape and is therefore compatible with the existing development in the local area, it uses articulation of the built form to achieve compatibility with the adjacent residential dwellings, and each of the elements of the built form, and their height, is compatible with the desired future character of the local area and provides the transition between the higher and lower density zones. Therefore, contrary to the evidence of Ms Prakash, none of the "density, FSR, height, bulk and scale proposed" of the development causes incompatibility. Further, the provision of a neighbourhood shop is not incompatible with the character of the local area, given that neighbourhood shops are permissible in the zone and the provision of one on the corner is compatible with the location of the site opposite the B2 Local Centre zone, where a broader range of commercial and business premises are permissible. The viability of the shop, which was advanced by Ms Prakash in support of her opinion concerning compatibility, is completely irrelevant to the question of design and compatibility. Similarly, the setbacks of the proposed development are compatible given my findings above with respect to the transition from the B2 Local Centre to the dwellings. Finally, I cannot accept the evidence of Ms Prakash that the above ground terraces of the proposed development are roof terraces that are incompatible with the local area. Her evidence ignores the fact that none of the terraces actually sit above the predominant roof line of the building that fronts Helen Street, that they are each at the same level as living/bedroom areas within the dwelling, and that they will therefore present as balconies, which are already a feature of recently constructed dwelling houses on Helen Street (at 28 and 30 Helen Street) and Kerrinea Road (at 2, 2A, 7 and 9 Kerrinea Road). 3. Pursuant to cl 16A of the SEPP ARH, I have considered the design of the development and its compatibility with the character of the local area, and found it to be compatible with both the existing and desired future character of the local area. Setbacks 1. The proposed development does not comply with Clauses 8.3 and 8.4 of Part B1 of the BDCP, which requires a minimum setback of 5.5m to both the primary and secondary road frontages, and a setback of 3m to the southern boundary for east-west oriented sites. Instead, as set out above, a 1.5m setback is proposed along the primary frontage (Helen Street) for the neighbourhood shop, a 4.2m setback is proposed along Helen Street to the residential dwellings, a zero setback is provided to the waste storage area on Kerrinea Road, a zero setback has been provided to the basement from the northern, eastern and southern boundary, and a setback of 1.5m has been provided to the southern property boundary. 2. The Council contends that the non-compliance with the setback controls is a reason for refusal of the development application. However, the Council has not adduced any evidence of a discernible and/or measurable adverse impact occasioned by the non-compliance. The evidence of Ms Prakash does not address the same. Instead, her evidence identifies the objectives that are relevant to the setback controls, makes a statement about inconsistency with existing setbacks which is not substantiated by any factual evidence, expresses an opinion on the appropriateness of a neighbourhood shop or "ad hoc commercial space", and expresses an opinion that the development may cause an adverse precedent for future development. The final point of her evidence is that the failure to comply with setback controls "is a direct result of over development and incompatible density". Again, this does not identify any discernible and/or measurable adverse impact occasioned by the non-compliance with the setback controls. 3. Section 4.15(3A)(b) of the EPA Act requires that where the development application does not comply with standards with respect to an aspect of development, the consent authority "is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development." Level 1 argues that the proposed development achieves the objectives of the clauses of the BDCP concerning setbacks, and that the proposed setbacks reflect a considered design choice for a corner site and effect the transition expressly desired for the Sefton Small Village Centre. The setbacks are appropriate 1. I accept the position advanced on behalf of Level 1. The proposed setbacks are appropriate in their context, and allow the development to achieve a transition from the R4 and B2 zones, to the low and medium residential density R2 and R3 zones. Similarly, they allow sufficient landscaping so as to achieve the objective of multi dwelling housing to "require landscape as a key characteristic in the development", and they preserve local amenity for residents and neighbouring properties. 2. The objectives identified by Ms Prakash as being relevant to the setback controls include the provision of "a suitable visual transition between high density residential areas and low density residential areas", to protect "local amenity", and to "require landscape as a key characteristic in the development". Further, clause 8.4 identifies that the intended outcome for the requirement of a 3m setback to the southern boundary is "to minimise overshadowing on adjoining properties". 3. Firstly, the 1.5m setback of the neighbourhood shop from both Kerrinea Road and Helen Street achieves the objective to provide "a suitable visual transition between high density residential areas and low density residentials". The 1.5m setback to the corner enables the neighbourhood shop to provide an active street frontage, and provides an appropriate transition from the zero setback for shops located across the road to the north, to the low and medium density residential areas. Further, as the neighbourhood shop addresses an intersection that is quite wide, there are no adverse amenity impacts occasioned by the non-compliant setbacks and the setbacks are therefore sufficient to protect local amenity. 4. Secondly, the remaining setbacks to Kerrinea Road are appropriate in their context and achieve the relevant objectives of the setback controls. The building has a zero setback where the hydrant booster and access stairs are located, but then there is a break in the built form between the building fronting Helen Street and dwelling T9. Dwelling T9 follows the pattern of the orientation of dwellings along Kerrinea Road, which means that its setback varies from 3.85m to 7.86m. This provides an appropriate area for landscaping in the front setback area, which also forms the private open space for T9, and allows an appropriate transition from the smaller setback for the neighbourhood shop, to the larger setbacks for residential dwellings to the west. Again, there is no evidence of any impacts arising from the proposed setbacks along Kerrinea Road, and I am satisfied that the setbacks are sufficient to protect local amenity as well as providing a visual transition from the higher density development in the R4 and B2 zones, to the low density residential zone immediately to the west. 5. Thirdly, similarly, the remaining setbacks to Helen Street are appropriate in their context. The setback of the building at the ground level and first floor complies with the requirement for a 5.5m setback, but there are encroachments of the first floor balconies, stairwells and ground floor stairwell entries into that front setback area, and at the second floor the setbacks to the building are reduced to 4.08m. I accept the evidence of Mr Betros that these setbacks nevertheless allow sufficient deep soil and overall landscaping, and are compatible with the setbacks of properties on Helen Street to the south. Accordingly, I accept that these setbacks, although numerically non-compliant, nevertheless achieve the objective to "require landscape as a key characteristic" whilst also providing a visual transition from the higher density areas in the R4 and B2 zones, to the medium density residential zone to the south, which is likely to be developed into the future. There is no evidence that the non-compliances cause any adverse impact on local amenity in terms of access to sunlight or privacy. 6. Fourthly, the southern side setback breaches the 3m setback requirement for a length of around 14m, where the setback is instead 1.5m. The objective of this side setback requirement, as set out above, is to "minimise overshadowing on adjoining properties". This objective is achieved by stepping down the height of the building on that southern boundary, so that there are only two storeys adjacent to the southern boundary, and also by limiting the extent of the building that breaches that setback to 14m, which reflects the depth of the existing dwelling to the south. I accept the evidence of Mr Betros that the recessed nature of the upper level, the privacy screening and the separation distances each contribute to the reasonable retention of privacy and solar access to the adjacent dwelling at 27 Helen Street (see Ex 2 p 15). Further, the Council has not identified as an issue, and there is no evidence of, any unacceptable overshadowing of the dwelling to the south occasioned by the reduced setback. 7. Similarly, the zero basement setbacks along a portion of Kerrinea Road and the southern side boundary does not create any identifiable adverse impact. The requisite deep soil landscaping is nonetheless able to be achieved by the proposed development. 8. With respect to the evidence of Ms Prakash concerning the creation of an adverse precedent for future development, I consider that each development application will be considered on its merits and in its context. I do not accept that the proposed development will create an adverse precedent that will permit further breaches of the relevant setback controls. The site the subject of the proposed development is a corner site on the intersection of three streets, with large separation distances across the intersection, and is also located at the junction of four different land zones. Accordingly, it is in a unique position of being able to provide transition between the different zones, and I accept the evidence of Mr Betros that, as a corner site, the setbacks of 5.5m cannot be achieved without a significant impost on the developable area of the site that would not make it possible to achieve that transition. Other sites will not share those unique characteristics. 9. For all of these reasons, I consider that the setbacks of the proposed development are acceptable. Private open space 1. The Council contends that the proposed development fails to provide each dwelling with the minimum private open space required by the BDCP. This contention is advanced on two grounds. 2. Firstly, the Council submits that the private open spaces do not meet the minimum width specified in Clause 8.5 (see [29] above) because Ms Prakash construes that the words "minimum width" mean minimum dimensions of 5m x 5m. Secondly, the Council points out that balconies and undercroft areas do not fall within the definition of open space under the BDCP. That definition is in the introduction to the BDCP and is as follows: "Open space means any open or vacant area on an allotment that is designed, constructed, or adapted for living or outdoor recreation, but does not include: (a) a driveway, parking area, drying area or other service area, undercroft area, balcony, and the like; or (b) any above ground terrace, deck, or verandah where the height of the floor level is more than 300mm above the ground level (existing)." 1. Contrary to the Council's position, each of the dwellings are provided with private open space that meets the dimensional requirements of Clause 8.5. The words "minimum width" cannot be construed in the manner advanced by Ms Prakash. To do so is contrary to their ordinary meaning. The words "minimum width" relates to a single dimension of 5m, and does not extend to requiring more than one dimension of 5m. 2. Further, contrary to the Council's position, the evidence of Mr Betros is that the undercroft area of T9 has been excluded from the calculation of the area of private open space. As such, dwellings T1-T5 and T9 all have private open space that is compliant with the controls in the BDCP. 3. However, the private open spaces of dwellings T6, T7 and T8 nevertheless do not conform to the definition of open space in the BDCP. This is because all of the private open space is located on balconies. Nevertheless, in circumstances where each of these dwellings do not have floor space on the ground level (other than the access stairs), I accept the evidence of Mr Betros that the private open spaces offer acceptable amenity to residents, and provide at least one area that is sufficient for recreation and repose accessible from a living area. 4. For those reasons, the private open space for each dwelling is sufficient in size and offers adequate amenity for future residents. Solar access 1. The Council also contends that the proposed development should be refused on the basis that it provides insufficient solar access to the proposed dwellings and the associated private open space. 2. However, the evidence before the Court is that solar access to each of the living areas and private open spaces meets the requirements of the BDCP. That evidence is contained in solar access diagrams. Mr Betros and Ms Prakash gave oral evidence concerning those diagrams. 3. In particular, the evidence is that the private open space complies with the solar access requirements of the BDCP, which requires (at Clause 8.9) that a minimum 50% of the private open space required for each dwelling must receive at least 3 hours of sunlight between 9.00am and 5.00pm at the equinox. The diagrams show that this is achieved at the winter solstice, which means that it will also be achieved at the equinox. Further, the private open space also meets the "must not refuse" criteria for solar access in the SEPP ARH, which requires that a minimum of 70 per cent of the dwellings receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. Ms Prakash agrees that the private open space complies with the BDCP requirement and the "must not refuse" criteria. 4. Similarly, the evidence before the Court is that the living areas of the dwellings complies with the solar access requirements of the BDCP, but do not meet the "must not refuse" criteria for solar access in the SEPP ARH. The BDCP requirement for solar access to living areas is for "at least one living area of each dwelling must receive a minimum 3 hours of sunlight between 8.00am and 4.00pm at the mid–winter solstice." Ms Prakash disputes that this is achieved, and says that "more information is needed" on the basis that, on her evidence, just because there is sunlight on the glass does not mean it falls within the dwelling. 5. I reject Ms Prakash's evidence. It is absurd to suggest that sunlight falling on a glass window or door does not penetrate to the room beyond the glass window or door. I accept the evidence shown in the solar access diagrams, and that therefore the standards for solar access for both the private open spaces (Clause 8.9) and living areas (Clause 8.7) are achieved. As such, s 4.15(3A)(a) of the EPA Act precludes more onerous standards being imposed, and I accept that the solar access is acceptable. Density 1. As set out in the planning controls above, the control at Clause 8.6 of Section 8 of Part B1 of the BDCP sets a minimum site area for each dwelling of not less than 175m2. The proposed development instead has an average site area for each dwelling of around 115m2. The Council submits that the proposed development is therefore not of appropriate density, and should be refused. This is supported by the evidence of Ms Prakash, who opines that the density control "provides clear understanding of the density related to multi dwelling houses developments and the relationship of the development type other development types in the urban typology scale" (Ex 2 p 23). 2. Level 1 submits that the minimum site area control in Clause 8.6 is incongruent with the minimum lot area applicable under the SEPP ARH, and the definition of multi dwelling housing. Multi dwelling housing, by definition, is "3 or more dwellings" and the SEPP ARH, at cl 14(1)(b), provides a "must not refuse" criteria for site area for infill development, including multi dwelling housing, of 450m2. On the other hand, the application of Clause 8.6 of the BDCP, the smallest form of multi dwelling housing would require a site area of 525m2, being three dwellings of 175m2. Level 1 submits that this is incongruous with the SEPP ARH, and therefore s 3.43(5) of the EPA Act is engaged, such that Clause 8.6 is inoperative. Section 3.43(5) provides: (5) A provision of a development control plan (whenever made) has no effect to the extent that— (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument. 1. I accept the submission made by Level 1, which was not contradicted by the Council. Clause 8.6 has no effect pursuant to s 3.43(5)(b), as it applies a density control that is incompatible with cl 14(1)(b) of the SEPP ARH in light of the definition of multi dwelling housing. If a multi dwelling housing development to which the SEPP ARH applies cannot be refused on site area because the area is greater than 450m2, it is incongruent to require a dwelling density of one dwelling per 175m2 for a development comprising 3 or more dwellings. I accept the submission made by Level 1 that Clause 8.6 therefore has no effect in relation to the proposed development. 2. Moreover, I note that each of the dwellings meets the "must not refuse" criteria for the size of dwellings in cl 14(2)(b) in the SEPP ARH, which means that the proposed development cannot be refused on the basis of dwelling size. Further, each dwelling meets the minimum private open space area requirement under the BDCP, as set out in my findings above. In such circumstances, the site area for each individual dwelling that is proposed, comprising the floor space of the dwelling and the private open space, is acceptable. Visual privacy 1. The Council contends that the proposed development should be refused on the basis that the proposed development fails to address "visual privacy requirements", which the Council submits is "a severe amenity constraint". This is a contention raised by the Council that is not substantiated by any evidence of a genuine overlooking relationship that would impact visual privacy. Instead, it is raised on the basis that the proposed development contains outdoor terrace areas, one of which is described on the plans as a "roof terrace". The Council submits that this is contrary to the control in the BDCP that "Council does not allow multi dwelling housing to have roof–top balconies". 2. However, none of the terraces are actually above the upper roof line of the development and are each located on the same floor level as the floor space of dwellings. Further, the Council assumes, wrongly, that the proposed development relies on landscaping to achieve visual privacy. 3. Contrary to the Council's position, I accept the evidence of Mr Betros, which was not contradicted by Ms Prakash, that the design of the elevated terrace areas means that the trafficable area of the terrace is recessed behind a planter. This means that, even if there was no landscaping in the planter box, the design is such that a person standing on the terrace has no sight line that allows them to overlook a neighbouring property, which is clearly demonstrated in the Sight Line Detail (Ex C Tab 17 Drawing 21). 4. The Council has failed to make out its contention that any visual privacy issues arise, and, based on the evidence of Mr Betros and the Sight Line Detail, I accept that the elevated terraces do not adversely impact on the visual privacy of neighbouring residents or residents of the proposed development. Amenity 1. The Council contends that the proposed development should be refused as it fails to provide for the amenity for the future residents and the residents of the neighbouring properties. The Council provides four particulars in support of this contention (Ex 1): "a) The proposal has not provided sufficient information in regards to the operation of the neighbourhood shop including details of loading and unloading. b) Accessibility to each residential unit is poor. c) Concerns are raised in regard to the practicality and functionality of the proposed accessible car space. d) Concerns are raised regarding the location of T9 above the basement entry." 1. The Council relies on the evidence of Ms Prakash, who opines that the individual access stairs to each dwelling comprise "accessibility and general practically [sic]", which results in a "poor amenity and general liveability outcome for future residents". 2. However, there is no objective, specific, concrete or observable evidence that the proposed development will result in poor amenity outcomes for the residents. Vague notions of "concern", as expressed in the particulars to the contentions, and in the evidence of Ms Prakash, are not sufficient to establish that there are poor amenity outcomes. There must be evidence that can be objectively assessed before a finding could be made of an adverse effect on the resident amenity. No such evidence has been provided. 3. As such, I accept the submissions, made on behalf of Level 1, addressing each of the "concerns" particularised. Firstly, the use of the neighbourhood shop will be the subject of a future development application, at which time the impact on the amenity of the residents can be assessed and suitable conditions imposed to limit any impact. Secondly, there is no requirement to provide disability access to each of the dwellings and there is no control with respect to a limit on the number of stairs for acceptable access to dwellings. Thirdly, the accessible visitor car space arises from a parking requirement under the BDCP, and an accessible path of travel is provided from the car space to the street, which allows access to each dwelling and the neighbourhood shop. Finally, there are no specified or identified concerns with the impact of the entry to the basement below T9. 4. For these reasons, the Council has failed to make out its contention that the proposed development provides inadequate amenity for its residents or for residents of neighbouring properties. Waste management 1. The Council originally raised a contention that there is insufficient information concerning waste management on the site. Additional information has been provided, and the Council's position is now that the proposed waste management systems are not appropriate for the development and that conditions of development consent should be imposed that require a redesign of the development to provide for bin storage at ground level within 10m of the kerb, and to rely on the collect and return waste service provided by the Council in lieu of kerbside collection. 2. The BDCP and the Council's Waste Management Guide for New Developments (WMG) sets out two different ways that waste can be managed in multi dwelling housing. One way is the collect and return waste service provided by the Council, where the Council arranges the collection of bins from a bin storage area on the site that is located within 10m of the kerb (or a holding area if the bin storage area is further than 10m from the kerb), and returns the empty bins to the same area. The second way is the kerbside collection of bins, with residents having their own individual bin storage area on their property. Clause 2.10 of Part B13 of the BDCP makes it clear that multi dwelling housing development that does not have sufficient kerbside frontage to accommodate all allocated bins is to "provide a communal bin storage area that can be integrated with Council's standard collect and return service". The WMG requires that multi dwelling housing developments "are required to present all bins to a kerbside collection point" (Ex 6 p 4), but provides that if there is insufficient kerbside space available it is appropriate for "a communal bin storage area to be provided" (Ex 6 p 5). 3. The proposed development relies on the kerbside collection of bins, but the bins for dwellings T1 to T8 will be kept in a communal residential waste room and transported to the kerb of Kerrinea Road by a caretaker or manager. The bins for dwelling T9 can be kept separately in their private open space and transported directly to the kerbside on Kerrinea Road by the occupier of T9. Dwellings T2, T3, T4, T5, T7 and T8 have garbage chutes that allow rubbish to be placed in a chute located in the private open space, and disposed of into bins in the basement. The chute contains a switch that diverts waste to either general waste or recycling, as selected by the resident operator. There is a separate waste room for the commercial waste from the neighbourhood shop, and the commercial waste room has a door directly to the street. It is proposed that the caretaker or manager manage the chute operation so that the bulk bins in the basement that collect from the garbage chutes are regularly swapped, and that the caretaker or manager carts the bins to the kerb for collection using an electric tug. There is also a bulky goods room for bulk waste. 4. The evidence of Ms Bowly is that this proposed arrangement is unacceptable, for the following reasons: * The walking distance from the dwelling entrances to the waste storage area is excessive. * The narrow stairways to all units are insufficient to accommodate the moving of bulky waste. * The garbage chutes create odour issues which will reduce the amenity of the private open spaces. * There is insufficient separation of recyclables, and there needs to be a cupboard near the chute for recyclables. * The bin storage and the chute termination point need to be in separate rooms, with access to the chute termination point restricted. A wire cage is not a satisfactory enclosure of the bin room with a chute. * There needs to be a linear mechanical bin movement to move the bins underneath the chute once the bins are full. * The bin carting route from the bin storage room to the kerbside is unsafe, as there is conflict with vehicles, the gradient of the driveway is greater than 1:30, and the distance to car the bins and bulky waste is unsatisfactory. * Bulk bins are not to be presented to the kerb for collection. 1. Mr Dickens gave contrary evidence, and explained in detail the chute system, how the waste will be managed, the distances from the dwellings to the residential waste rooms, and the percentage of the kerb on Kerrinea Road that the bins will occupy. He opines that the kerbside collection of residential waste and recycling will not impact negatively on the principles of health, safety and convenience, and that the chutes will not cause any noise or odour impacts. The proposed waste management is satisfactory 1. In considering whether the proposed waste management is acceptable, it is not the role of the Court to consider whether there is another, more efficient means of managing the waste within the proposed development. The assessment of the development application is instead confined to considering the acceptability of what is proposed. In doing so, I consider that the proposed waste management is satisfactory, for the following reasons. 2. Firstly, there is sufficient space on Kerrinea Road for kerbside collection. I accept the evidence of Mr Dickens that the maximum number of bins presented for collection will occupy 6.68m of the 41m frontage, which is around 16.29%. It is the clear preference in the WMG that bins for multi dwelling housing be presented kerbside for collection if there is sufficient room to do so. Further, there is nothing in the BDCP or the WMG that the Council relies upon to support Ms Bowly's position that bulk bins (660L) cannot be collected from the kerbside. 3. Secondly, I do not accept the evidence of Ms Bowly that the distance of the residential waste room from the dwellings is unacceptable. There is nothing in the BDCP or the WMG that the Council relies upon to support Ms Bowly's position that the distances should not exceed 30m. In any event, I accept the evidence of Mr Dickens that T6 has a travel distance of 29.5m to the residential waste room, and I consider that the travel distance of T1 would be less than that. Dwellings T2, T3, T4, T5, T7 and T8 each have garbage chutes to provide a convenient means of disposing of their waste, and T9 has direct access to their bins in the private open space. Further, I accept the evidence of Mr Dickens that residents will travel to the basement to access their motor vehicles to leave the building, and the residential waste room is conveniently located within the basement so that residents can dispose of waste when accessing their vehicles. 4. Thirdly, I am satisfied that the odour and noise from the chutes will not create an unacceptable noise or odour impact. I accept the evidence of Mr Dickens that the location of the openings in outdoor areas will minimise any odour, as it will be naturally ventilated, and that the angle of the chute outlet and its rise of only 3 storeys will lessen any noise impact of the 'drop' into the bin. 5. Fourthly, the separation of recyclables from general waste is acceptable with the system proposed. As set out in the evidence of Mr Dickens, this will be achieved with a dual waste and recycling e-diverter chute system, which allows a one chute system to manage both waste and recyclables. 6. Fifthly, the proposed means and route for carting bins from the residential waste room to the kerbside is acceptable. The bins will be transported by the building manager or care taker, who will use a Mobile Bin Towing Device. Mr Dickens agrees that traffic safety devices can be provided to protect the care taker when this is occurring. 7. Sixthly, nothing about the bulky waste, in my view, warrants the refusal or the redesign of the proposed development. In all townhouses accessed by stairs, the removal and moving of furniture and bulk goods can be difficult, but that difficulty does not warrant refusal of a development application. There is nothing in the BDCP or the WMG that the Council relies upon to support Ms Bowly's position regarding the removal of bulky waste. As required by the WMG, the proposed development provides a bulky waste storage area. 8. Further, there is nothing in the BDCP or the WMG that the Council relies upon to support Ms Bowly's position that a separate room is required for the chute system. Instead, I accept the evidence of Mr Dickens that the residents that do not have garbage chutes will dispose of their rubbish into waste bins that are located in a separate area of the room and would not impact on the operation of the chute or create any safety issues. 9. Finally, the reliance on a caretaker or building manager to manage the changing of bins at the bottom of a chute, is acceptable, given that I accept the evidence of Mr Dickens (which is not contradicted) that there is sufficient space within the bins under the chute to accommodate at least three days of resident waste. The fact that a caretaker or building manager is required 2-3 days a week, and for carting the bins to the kerbside, does not render the proposed system unacceptable. 10. For those reasons, I do not accept that a redesign is required to accommodate the matters identified as issues by Ms Bowly. Instead, I consider that the proposed waste management on the site is acceptable. I note, however, that the Waste Management Plan will need to be updated to reflect the amended architectural plans and the evidence of Mr Dickens. This is incorporated in the conditions of consent that are proposed by Level 1, together with a proposed condition requiring the preparation of a Plan of Management to incorporate the management of waste, bin movements, and bulky waste. These documents are required to be provided to the Council for approval prior to the issue of a construction certificate. Development consent should be granted 1. For the reasons that are set out above, none of the contentions raised by the Council have been made out. I am satisfied that the proposed development is permissible on the site, is an appropriate application of the SEPP ARH, and responds appropriately to the unique context of the site adjacent to an intersection that forms the junction of four land use zones. Additionally, I am satisfied that the following preconditions to the exercise of the Court's jurisdiction, identified by Level 1, have been satisfied: * The proposed development complies with the applicable development standards in the BLEP. * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated. 1. Development consent should therefore be granted, subject to the conditions of consent as proposed by Level 1. 2. The Court orders that: 1. Leave is granted to the applicant to amend the development application to rely on the consolidated set of architectural plans dated June 2021 contained in Ex E. 2. The appeal is upheld. 3. Development consent is granted for the demolition of existing structures and the construction of a mixed use development comprising a multi dwelling housing development with 9 dwellings and a neighbourhood shop, at 29-31 Helen Street, Sefton, subject to the conditions in Annexure A. 4. The exhibits are returned, except for Exhibits A, C, D and E. ………………….. J Gray Commissioner of the Court Annexure A (257712, 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: 23 July 2021