Land and Environment Court New South Wales Medium Neutral Citation: White v Parramatta City Council [2011] NSWLEC 1059 Hearing dates: 22, 23 February 2011, 9 March 2011 Decision date: 11 March 2011 Jurisdiction: Class 1 Before: Brown C Decision: Appeals dismissed Catchwords: DEVELOPMENT APPLICATION - two development applications for the demolition of all existing improvements and the construction of a two-storey boarding house on two separate lot - impact on heritage significance of heritage item - suitability of proposed developments when compared to character of the area Legislation Cited: Parramatta Local Environmental Plan 2001 Parramatta Local Environmental Plan 1996 (Heritage and Conservation) Draft Parramatta Local Environmental Plan State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Nigel White (Applicant) Parramatta City Council (Respondent) Representation: Counsel: Ms S Duggan SC with Mr S Nash (Applicant) Mr S Kondilios, solicitor (Respondent) Solicitors: Blackstone Waterhouse Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 10806 and 10807 of 2010 Judgment 1COMMISSIONER: These are two separate appeals against the refusal by Parramatta City Council (the council) of two development applications on two separate lots for the demolition of all existing improvements and the construction of a two-storey boarding house on each lot at 59 and 61 Victoria Road Parramatta. 2The parties agreed that evidence in one appeal is evidence in the other appeal and that both appeals be heard concurrently although separately determined. 3A s 34 Conciliation Conference was held on 2 December 2010 however no agreement was reached. The s 34 Conciliation Conference was ultimately terminated and at a mention on 9 December 2010, before the Registrar, it was agreed that a further site inspection was not necessary and that the evidence provided by residents at the s 34 Conciliation Conference on 2 December 2010 could be used as evidence in the hearing as the hearing was to be heard by the Commissioner who undertook the s 34 Conciliation Conference on 2 December 2010. 4Due to the unavailability of the allocated Commissioner, a mention was held on 22 February 2011 before me where it was agreed that a site inspection was to be held prior to the hearing, however insufficient time was available to advise residents of the changed circumstances and the need to again provide their evidence on -site. It was agreed that hearing should proceed on the basis of the on-site inspection and the expert evidence with the resident evidence provided on site on 9 March 2011. Appeal No. 10806 of 2010 (Development Application No 22/2010) 5This appeal relates to 61 Victoria Road Parramatta, being Lot 3 in DP 37358. Lot 3 is irregular in shape with a 13.755 m frontage to Victoria Road, a rear boundary of 12.865 m and side boundaries of 45.665 m and 45.83 m giving a total site area of 656.8 sq m. A single storey inter- war dwelling is located on the lot. 6The proposal provides for the demolition of all existing improvements on the lot and the construction of a two-storey boarding house. The ground floor contains an entry foyer with stairs to the first floor, a recreation room containing a kitchen, 7 self-contained boarding rooms, each containing a kitchen/laundry and bathroom (with one accommodating a double bed for potentially two boarders and the remainder 6 single boarders). A common open space area is provided at the rear of the site. The first floor contains 9 self-contained boarding rooms each containing a kitchen/laundry and bathroom for single boarders. Appeal No. 10807 of 2010 (Development Application No 21/2010) 7This appeal relates to 59 Victoria Road Parramatta, being Lot 2 in DP 37358. Lot 2 is irregular in shape with a 14.02 m frontage to Victoria Road, a rear boundary of 13.27 m and side boundaries of 58.83 m and 41.695 m giving a total site area of 579.1 sq m. A single storey inter- war dwelling is located on the site. 8The proposal provides for the demolition of all existing improvements on the site and the construction of a two-storey boarding house. The ground floor contains an entry foyer with stairs to the first floor, a recreation room containing a kitchen, 6 self-contained boarding rooms, each containing a kitchen/laundry and bathroom (with one accommodating a double bed for potentially two boarders and the remainder 5 single boarders). A common open space area is provided at the rear of the site. The first floor contains 8 self-contained boarding rooms each containing a kitchen/laundry and bathroom for single boarders. The contentions 9The contentions in both appeals are similar and can be summarised as: * unacceptable impact on the heritage significance of nearby heritage items, * inconsistency with zone objectives relating to character of the area, * excessive bulk and building separation and generally an unacceptable design, * unacceptable impact on the amenity of adjoining properties, * poor amenity for future inhabitants, and * inadequate solar access to private and common open space areas (59 Victoria Road only). Relevant planning controls 10Both sites are within the 2B Residential Zone under Parramatta Local Environmental Plan 2001 (LEP 2001). Boarding houses are a permissible use with consent within this zone. The relevant zone objectives are: (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage redevelopment of low density housing form, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas, or the natural and cultural heritage of the area, and (c ) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and 11Clause 41 provides specific requirements for existing boarding houses so the clause is not relevant for these appeals. 12Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (the Heritage LEP) applies. Clause 14 addresses development adversely affecting a heritage item or heritage conservation area. Clause 14(1) relevantly requires that before granting consent to a development that may " adversely affect the heritage significance of a heritage item...", the consent authority must assess the impact of the development on a range of matters, including the curtilage and setting of the heritage item (cl 14(1)(a)) and any significant views to or from the heritage item (cl 14(1)(b)). 13The buildings at 63 Victoria Road (Dunblane) and 65-67 Victoria Road (Canberra and Roach Manor) are identified as heritage items in Schedule 2 of the Heritage LEP. 14Parramatta Development Control Plan 2005 (DCP 2005) applies to the sites although there are no specific requirements relating to boarding houses. The council relies on DCP 2005 to establish the character anticipated by the councils planning controls for the sites. 15Draft Parramatta Local Environmental Plan (the draft LEP) applies, being a proposed instrument that has been the subject of public consultation. The sites are within Zone R3 Medium Density Residential under the draft LEP. Boarding houses are a permissible use with consent within this zone. 16The principal planning document for the assessment of the development applications is State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP). The aims of the SEPP are : (a) to provide a consistent planning regime for the provision of , (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation. 17Clause 8 states: If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 18Part 2 Division 3 provides specific requirements for boarding houses. Clause 29 provides standards that cannot be used to refuse consent. It was agreed that the proposed developments satisfied the standards within this clause with the exception of the standard in cl 29(1)(a) that states: 1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or 19Relevantly, cl 29(4) states: 4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). 20Clause 30 provides that consent must not be granted for boarding houses unless a range of standards are satisfied. There was no dispute that the proposed development satisfied the standards in cl 30. Heritage impacts The evidence 21Mr Graham Brooks provided evidence for the council and Mr Greg Patch provided evidence for the applicant. Both experts are specialist heritage architects. Both agree that there are two relevant heritage listed properties at 63 Victoria Road and 65-67 Victoria Road; the former being a single storey detached dwelling and the latter being a single storey duplex. Both properties are currently used for commercial activities. Development consent was granted on 21 August 2007 for the erection of 5 townhouses at the rear of Dunblane although no building activity has taken place to date. 22The Statement of Significance for both items is the same and states: House group which makes a notable contribution to townscape due to similarities in age, design, use and materials. Earlier housing subdivision. National Trust (Parramatta Branch): House group makes a notable contribution to townscape due to similarities in design, age and materials. 23The primary issue of disagreement between the experts is the degree to which the proposed boarding house at 61 Victoria Road will impact on the heritage significance of Dunblane. There was also disagreement on the impact of the proposed developments on the contribution made by the group of dwellings comprising the heritage items and three dwellings, including the sites of the subject appeals. This raises the question of whether the dwellings on the subject sites should be demolished. 24Mr Brooks maintains that the proximity and the scale of the proposed building at 61 Victoria Road will introduce a much larger and competing building volume into the immediate backdrop of Dunblane when viewed from the east along Victoria Road. This will degrade the visual integrity and prominence of Dunblane where it might be considered an important component of the arterial gateway to Parramatta along Victoria Road. 25Mr Brooks further states that the combination of the three adjacent and relatively similar inter- war cottages at 57, 59 and 61 Victoria Road makes a complementary contribution to the immediate locality in Victoria Road and reinforces the scale and subtle rhythm of the extended group of houses. They combine to form a distinctive contrast to the surrounding multi-storey residential flat buildings. In his opinion, the cottages on the subject sites should not be demolished. 26Mr Patch disagrees with the conclusions of Mr Brooks on the impact on the heritage significance of Dunblane. He states that there will be some additional screening of the west wall, which, is effectively the service yard of the cottage. The prominent view of this wall is typically from a moving vehicle from west to east on Victoria Road and the effects of the screening will be slight, given the height of the viewer and the available views through the undercroft area of the proposed development. There will be no screening of the front western return end of the verandah of Dunblane which, in its current form is the main differentiating element of the cottage, even though it consists of reproduction metalwork and reconstructed verandah framing and roof sheeting. In his opinion, the item will remain legible as one of the "house group" with some minor reduction in visibility. Mr Patch suggests that a further setback of 1 m could be provided at the upper level recreation room although he does not consider this amendment necessary. 27Mr Patch also disagrees with Mr Brooks on the effect of the proposed developments on the group of houses. He states that the inter-war houses are not identified heritage items and as such there can be no reason why the dwellings could not be demolished. In his opinion, the two dwellings are not significant in heritage terms and would not satisfy the criteria for listing as heritage items based on the NSW Heritage Office criteria. Mr Patch states that there is no disagreement that the existing dwellings are from the inter-war period whereas the listed dwellings are Victorian. Findings 28On the issue of whether the existing dwellings can be demolished, I agree with Mr Patch. The dwellings are not listed as heritage items in the Heritage LEP either individually or collectively. I am satisfied that the reference to the phrase "House group which makes a notable contribution to townscape" in the listings for 63 Victoria Road and 65-67 Victoria Road is a reference to the house group comprising the identified heritage items rather than a group of houses that include the inter-war dwellings and the heritage items. Multiple buildings that create a streetscape or townscape can be included in a local environmental plan and can require consideration under the heritage provisions if the group has heritage significance, even if the buildings do not warrant individual listings. While the collection of buildings along Victoria Road creates a pleasant appearance of older style residential dwellings, I accept that there is insufficient heritage significance in the collection of the buildings to warrant their retention on heritage grounds. 29On whether the proposed building at 61 Victoria Road unacceptably impacts on the heritage significance of Dunblane, I agree with Mr Brooks. The proposed building is closer to Dunblane at the Victoria Road frontage than the existing dwelling. Even with the additional 1 m setback proposed by Mr Patch, I am untroubled in concluding that the first floor recreation room unacceptably impacts on the significance of Dunblane because of its proximity, height and bulk. Any design on the site calls for a more sympathetic and complimentary design that does not draw attention away from and overpower Dunblane. Even though part of the western wall of Dunblane will still be visible from certain locations, the presence of a two-storey building with a minimum separation of around 2 m will unacceptably impacts on its setting and presence in Victoria Road. 30I also do not accept that the ability to be able to view the western wall of Dunblane through the undercroft area compensates in any meaningful way for the poor relationship with Dunblane. Similarly, and even though the height of the proposed building (RL 20.31) is not dissimilar to the ridge height of Dunblane (RL 19.54), the volume of the proposed development, when compared to the pitched roof of Dunblane, exacerbates the incompatibility between the proposed building and Dunblane. The proximity of the proposed building and Dunblane compares most unfavourably with setback between the approved townhouse development and Dunblane where a minimum setback of over 10 m is provided. 31In accordance with cl 14 of the Heritage LEP, I find that the proposed development at 61 Victoria Road unacceptably impacts on the heritage significance of Dunblane and the impact is of such significance that it warrants the refusal of the development application for this reason alone. The form/design of the proposed developments 32Mr Neil Kennan, a town planner, provided evidence for the applicant and Mr Stuart McDonald, a town planner, and Ms Gabrielle Morrish, an architect and urban designer, provided evidence for the council. The applicant's evidence 33Mr Kennan states that as the council has made boarding houses a permissible use on the sites under both LEP 2001 and the draft LEP, it must be concluded that a boarding house is a low-density form of residential development. On this basis, the proposed purpose is consistent with zone objective (b) of LEP 2001. It is then a matter of determining the impacts of the particular boarding house might have on the residential character of the area. In this regard, Mr Kennan states that there is no dominant residential character, as the built form consists of uses such as a service station, villa development, dwelling houses and a four-storey residential flat building. While the proposed developments are contemporary in design, Mr Kennan states that the design provides a form that fits within the existing built environment. The proposed developments will provide a suitable transition between the single storey character of the heritage items, the approved townhouses at 63 Victoria Road and the residential flat developments in both the 2B zone and 2C zone (located at the rear of the sites) in the immediate vicinity. Mr Kennan states that proposed development would not offend zone objective (c) of LEP 2001. 34On the issue of floor space ratio (FSR) Mr Kennan states that there are no FSR requirements for boarding houses in LEP 2001 or the SEPP. Even though the developments will each have an FSR of 0.74:1 and that the maximum floor space ratio for any form of residential accommodation permitted on the land is 0.6:1; cl 29(4) of the SEPP still provides the opportunity for the Court to approve the proposed developments. Mr Kennan states there are no planning reasons why the buildings should not be approved with a FSR of 0.74:1. 35Mr Kennan states that the internal amenity of the units of the proposed boarding houses are acceptable, particularly given the amendments suggested at the joint experts meeting. These amendments include the adjustment of the design and internal areas to provide cross ventilation, the provision of adaptable units, the relocation of the recreation rooms to the first level, the provision of disabled access, the relocation of garbage bins and the removal of some balconies to avoid overlooking. The council's evidence 36Mr McDonald, in relation to zone objective (c), describes the established character of the residential area as containing low and medium density residential development as well as low-scale commercial uses occupying former dwelling houses. He notes that residential flat buildings are not a permitted use in the zone and notwithstanding the backdrop of high-density residential development in Zone 2C, the Zone 2B uses are relatively uniform in scale and character, representing low-density residential development. In his opinion the intent of Zone 2B is to maintain and enhance this recognised low-density residential character. Maintenance and enhancement of this existing character is achieved through compliance with the relevant development standards and planning controls. 37A core planning control for Zone 2B in LEP 2001 is FSR where the maximum FSR for multi-unit housing, dual occupancy and terrace housing is 0.6:1. Mr McDonald notes that both buildings have an FSR of 0.74:1 which is more consistent with the density of residential flat development permissible in Zone 2C. The buildings have a floor area 25% above the maximum residential density which results in the front setback being dominated by the hard stand motorcycle parking area sitting forward of the main front building line. The separate and discreet character of Zone 2B is recognised and reinforced in the draft LEP by providing a 0.6:1 FSR for boarding houses. Mr McDonald further states the side setbacks are also significantly below that required by the DCP, being 3.0 m rather than 4.5 m. Overall, Mr McDonald concludes that the proposed developments do not comply with the objectives of the zone. 38Ms Morrish agrees with Mr McDonald and states that the question to be answered is whether the design of the boarding houses, in terms of the massing, scale, setbacks, site coverage, relationship to other development and the streetscape is appropriate and whether these design characteristics "enhance" and do "not compromise" the amenity and character of the area. Ms Morrish concludes that the question must be answered in the negative. 39Other development types in the 2B Zone have to satisfy the setback and frontage width requirements. For multi-unit housing, a 24 m frontage is required and would require the amalgamation of the two lots, minimum side setbacks of 4.5, compared to the 3 m setbacks provided for the proposed developments and a rear setback equivalent to 15% of the site length (or 6.9 m), compared to around 5 m for the proposed developments. In accepting that boarding houses do not fall within the definition of multi-unit housing, it is reasonable to expect, in any merit assessment, that boarding houses should seek to provide a similar level of amenity and massing/open space balance to respond appropriately to the desired character of the area that will be created by the DCP controls that seek to "enhance" the amenity and character of the area. 40The proposed developments will cover far more of the two lots than a complying development under the DCP. There would be less landscaped area available to moderate the greater scale of the buildings to the street, adjacent to the heritage cottages and the existing dwelling to the west. The inadequate rear setback translates into negative impacts on the residential flat buildings to the rear through loss of privacy from the access stair to the upper level and the communal open space area. The inability to provide any landscaping limits the ability to address these amenity impacts. Findings 41The SEPP provides the opportunity to provide a range of different affordable housing forms and if there is satisfaction with a range of standards then these standards cannot be used as a reason to refuse the application. In this case, the standards identified in cl 29 and cl 30 were satisfied with the exception of the standard in cl 29(1)(a) relating to FSR. The relevant FSR standard is 0.6:1 and comes from the FSR requirement in cl 40 of LEP 2001 for multi-unit housing, dual occupancy and terrace housing developments. Both proposed developments have an FSR of 0.74:1. The ability to rely on FSR as a reason to not refuse the application is now unavailable however cl 29(4) provides that even though there is an exceedance of the 0.6:1 FSR, it is not necessarily a barrier to the approval of the applications. 42This raises the question of how the exceedance of the 0.6:1 FSR standard should be assessed. While the SEPP provides greater flexibility in the provision of a range of affordable rental housing, the flexibility is not unfettered. By providing that boarding houses cannot be refused where there is an FSR up to 0.6:1, there is a clear intention in the SEPP to maintain a form and character consistent with that permitted for residential development. In this case, multi-unit housing, dual occupancy and terrace housing developments. In my view, any exceedance of the FSR standard must be assessed against the objectives of the 2B Zone (in much the same way as an exceedance of a development standard can be tested through an objection under State Environmental Planning Policy No. 1 - Development Standards ) to determine whether the additional FSR can be supported based on the particular circumstances and characteristics of the proposed development. 43In this case, the objectives provide that the developments should enhance the amenity and characteristics of the established residential area (objective (a)) , not compromise the amenity of the surrounding residential areas (objective (b)) and be in character with the surrounding built environment (objective (c)). 44In considering these objectives against the expert evidence, I agree with the conclusions of Mr McDonald and Ms Morrish. On the matter of character, there is little doubt that there is a range of land uses in the vicinity of site although I am not convinced that any assessment should include parts of Victoria Road that extend well beyond the sites, as suggested by Ms Morrish. The southern section of Victoria Road between Macarthur Street and Betts Street, contains a service station, a villa development, a public recreation area, two heritage items, including approval for five townhouses on one heritage site, single storey inter-war dwellings and a three-level residential flat building. 45In my view, the character anticipated by the 2B Zone is predominantly residential in nature, but of different forms and at the same time providing for other activities to be carried out from a residential property providing that these activities do not affect the amenity of the neighbourhood. Any assessment of character should not include the service station and residential flat building, as these are forms of development not permissible in the 2B Zone. While they exist, they should not be used as any benchmark or basis for the assessment of the character of the area. 46The objectives specifically address the existing character ( established residential area (objective (a) and character with the surrounding built environment (objective (c)) however some consideration must also be given to the desired future character that includes other forms of residential development permissible with consent in the 2B Zone. These include dwelling houses and higher density development such as multi-unit housing, dual occupancy and terrace housing. If the proposed developments are compared to the forms of residential development anticipated by the councils planning controls in the 2B Zone then I have little trouble in concluding that the proposed developments will be inconsistent with objectives (a) and (c) because of the additional FSR provided above that specified in LEP 2001 and the resulting form of development. The provision of the amount of floor area on the sites has unacceptable consequences on the form of the proposed development when compared to the development anticipated by LEP 2001 and the DCP, even accepting that there is no obligation to comply with the DCP requirements for side and rear setbacks and minimum lot frontage. The proposed developments will be seen as two long and narrow buildings of a density greater than multi-unit housing, dual occupancy and terrace housing. The form and character will be clearly inconsistent with that anticipated by LEP 2001 and the DCP. 47The desire to provide the FSR for each of the buildings also results in a design that is, in my view, sub-standard. The need to provide access to the upper level rooms via an open stairway at the rear and an open corridor along the length of the building is a poor design feature of the development clearly driven by the need to provide the proposed floor area. 48I agree with Ms Morrish that inadequate setbacks effectively deny any opportunity for useful and effective screen planting although there must be some doubt as to whether landscaping is an appropriate means of addressing a substandard and inadequate design, based on the form and character anticipated by the requirements of the DCP. 49Objective (b) provides that the development not compromise the amenity of the surrounding residential areas. A number of the amendments suggested by Mr Kennan, such as the provision of privacy screens to some windows, the removal of some balconies and the provision of screens along the open corridor on the first floor overcomes some overlooking concerns and improves the amenity for some parts of the proposed development, although I agree with Mr McDonald that in some cases, the consequent effect is to reduce the amenity of the proposed rooms. 50I do not, however accept that the overlooking issue has been adequately addressed from the rear stair that provides access to the first floor levels of each building and the adjoining residential flat buildings to the rear of each site. The adjoining residential flat buildings have a relatively small setback to the rear property boundary of around 2.5 m to the building and around 1.5 m to the edge of the balcony. The stair is setback around 4 m from the rear boundary and the access stairs will provide a direct view into the first floor units of the adjoining residential flat building. I do not accept that the proposed landscaping is an adequate means of dealing with this unacceptable relationship. 51While the visual privacy issues associated with the first floor open corridor are adequately addressed through the provision of screens, I do not accept that the acoustic amenity impacts can be adequately addressed through the proposed design. While a recreation room is provided within each building and will likely be used for socialising between tenants, it is also likely that tenants of the buildings will use the open corridor for more random or informal interaction. The inability to restrict noise from the first floor open corridor is a serious and an inadequate aspect of the design and could potentially impact on the amenity of the adjoining residential flat buildings at the rear of the sites. 52For these reasons, I am satisfied that the proposed development is inconsistent with objective (b) in that, the developments will compromise the amenity of the surrounding residential areas. Orders 53For Appeal No. 10806 of 2010, the orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 22/2010 for the demolition of all existing improvements and erection of a two-storey boarding house at 61 Victoria Road Parramatta is refused. 3. The exhibits are returned. 54For Appeal No. 10807 of 2010, the orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 21/2010 for the demolition of all existing improvements and erection of a two-storey boarding house at 59 Victoria Road Parramatta is refused. 3. The exhibits are returned. G T Brown 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: 16 March 2011