Land and Environment Court New South Wales Medium Neutral Citation: Peninsula Developments Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244 Hearing dates: 18 -19 April and 9 May. 3 and 9 June 2011 (written submissions) Decision date: 19 August 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The development application to demolish existing structures and construct an Infill Affordable Housing development at 9 -11 Beaconsfield Street, Newport, is refused. 3. The exhibits, except Exhibit 1, may be returned. Catchwords: APPEAL - Development application for Infill Affordable Housing. Amendment to planning instrument, non-discretionary development standards, compatibility with character of local area. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Pittwater Local Environmental Plan 1993 Cases Cited: Blackmore Design Group v North Sydney Council [2001] 118 LGERA 290 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20 Carr v Western Australia (2007) 232 CLR 138 Project Venture Developments v Pittwater Council (2005) NSW LEC 191 R v Young (1999) 46 NSWLR 681 Terrace Towers v Sutherland Shire Council [2003] NSWCA 289 Category: Principal judgment Parties: Peninsula Developments Australia Pty Limited (Applicant) Pittwater Council (Respondent) Representation: Counsel Mr M Staunton, barrister (Applicant) Mr P Larkin, barrister (Respondent) Solicitors Sattler & Associates (Applicant) Mallesons Stephen Jaques (Respondent) File Number(s): 10985 of 2010 Judgment 1This is an appeal against the refusal by Pittwater Council (the council) of a development application (N0594/10) under the Environmental Planning and Assessment Act 1979 (EPA Act) to demolish existing structures and construct an Infill Affordable Housing development at 9 -11 Beaconsfield Street, Newport (the site). 2The plans before the Court vary from those considered by the council. The main issue between the parties is whether the design of the development is compatible with the character of the local area. Other issues in relation to the impacts of the development on the visual and acoustic privacy and solar access of adjoining properties were generally resolved and would not be reasons to refuse the application. Site and locality 3The site is located on the southern side of Beaconsfield Street to the west of its intersection with Barrenjoey Road. It comprises two allotments being lot 29 DP 1093125 (11 Beaconsfield Street) and lot 30 DP 1093125 (9 Beaconsfield Street) and has a combined area of 2892sqm. Each lot is developed with a single dwelling and associated outbuildings and the site contains significant native trees (mainly Turpentines), particularly at its rear. The site falls from the street and north eastern corner to the south western corner with a slope of approximately 13.5%. There are views towards Pittwater from the site. 4To the west, the site adjoins two detached dwellings (13A and 13 Beaconsfield Street). It also adjoins two detached dwellings to the east (7 and 5B Beaconsfield Street) and residential dwellings to the rear. Development in the vicinity of the site is predominantly detached dwellings of varying architectural styles and periods. A number of dwellings are developed on battleaxe allotments. There is a large, multi-level dwelling located on the southern corner of Barrenjoey Road (3 Beaconsfield Street) and an older style residential flat building on the northern corner of Barrenjoey Road (249 Barrenjoey Road). Newport Public School is located to the west of the site on the northern side of the Beaconsfield Street. 5The Newport Arms Hotel and a shopping centre are located near the western end of Beaconsfield Street and Kalinya Road. There is medium density residential development around the centre and in nearby areas. The proposal 6The development application includes: * Demolition of the two existing dwellings and associated outbuildings; * Excavation of the site; * Construction of a residential flat building comprising two basement car parking levels and part two and part three storey residential levels; * Associated tree removal and landscaping works; * Consolidation of the lots into one lot and strata subdivision of the completed development. 7The development would contain 24 apartments (8x1 bedroom, 3x1bedroom + study, 8x2 bedroom, 3x2 bedroom+ study and 2x3 bedroom units). Of these units, 12 units (7x1 bedroom, 3x1 bedroom + study and 2x2 bedroom + study) are to be maintained as affordable rental housing, managed by a registered community housing provider for 10 years. Nine of these units are designed as adaptable housing. 8There is basement parking for 38 cars of which 13 are accessible spaces. Vehicle access to the basement area is by a ramped driveway along the western boundary and pedestrian access to the building is along the eastern side of the site to two entry foyers. Two lifts provide access to all levels. Planning controls 9The site is zoned 2(a) (Residential A) under Pittwater Local Environmental Plan 1993 (PLEP). Residential flat buildings are prohibited in this zone. Clause 20 permits residential flat buildings on certain land within Zone 2(a), however this clause does not apply to the site. There are no aims and objectives for the zone. The site is in a Foreshore Scenic Protection Area (FSPA) in PLEP. 10At the time of lodgement of the application and the hearing of the appeal, clause 10 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH)) applied to the site. It provides: 10 Land to which Division applies (1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential. (2) Despite subclause (1), this Division does not apply to a development site in the Sydney region unless all or part of the development site is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990 ) that has at least one bus per hour servicing the bus stop between 06.00 and 18.00 each day from Monday to Friday (both days inclusive). (3) Despite subclauses (1) and (2), this Division does not apply to land identified in an environmental planning instrument as being within a scenic protection area unless development with a building height of 8.5 metres or more is permitted on the land. (4) In this clause: walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings. 11The parties agree that the Residential 2(a) zone is equivalent to a R2 Low Density Residential Zone, the site is within 400m walking distance of a bus stop and that development with a building height of 8.5m is permitted on the site, therefore the proposal met the requirements of cl 10 of SEPP (ARH). 12Clause 11 of SEPP (ARH) also applied to the development. It provided: This Division applies to the following development on land to which this Division applies: (a) development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if: (i) the development does not result in a building on the land with a building height of more than 8.5 metres, and (ii) in the case of development for the purposes of a residential flat building-residential flat buildings are not permissible on the land otherwise than because of this Policy, ....... 13Clause 12 of SEPP (ARH) permitted development for the purpose of a residential flat building to be carried out with consent. 14Clause 14 of the SEPP (ARH) includes standards that the development cannot be refused on, if the standards are met. These include: a floor space ratio (FSR) of not more than 0.75:1 (cl 14(1)(a)(ii)); a site area of at least 450sqm (cl 14(1)(b)); at least 30% of the site area is landscaped (cl 14(1)(c)(ii)); a 'deep soil zone' of not less than 15% of the site area (cl 14(1)(d)) and if the living rooms and private open space for a minimum of 70% of the dwellings receive a minimum of 3 hours of direct sunlight between 9am and 3pm in midwinter (cl 14(1)(e)). The parties agree that the proposal meets these requirements. 15Clause 16 of the SEPP (ARH) provides: Nothing in this Policy affects the application of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development to any development to which this Division applies. 16The parties disagree whether cl 14(1) is a non discretionary development standard and whether the requirements of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development (SEPP 65) are met. This is discussed later in the judgment. 17On 20 May 2011, SEPP (ARH) Amendment 2011 (the amending SEPP) was made. It replaced cl 10 with the following: (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. (3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones. 18The amending SEPP also deleted cll 11 and 12. The effect of these amendments is that the proposed development would not be permissible under SEPP 2011, but for the savings and transitional provision in cl 54A which relevantly provides: ..... (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. .... 19The amending SEPP introduced a new cl 16A which provides: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 20The council was granted leave to reopen the hearing for the parties to make submissions on the amending SEPP. These submissions were filed on, or before, 9 June 2011. The parties disagree on the effect of the amending SEPP, which is discussed in detail later in this judgment. 21SEPP 65 applies to the development. Clause 30 of SEPP 65 requires a consideration of the design quality principles, which relevantly include. Clause 9 Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. Clause 10 Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. Clause 11 Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. Clause 12 Principle 4: Density Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. 22The Residential Flat Design Code (RFDC) is also a relevant consideration under cl 30 of SEPP 65. 23Pittwater 21 Development Control Plan - Amendment 6 (DCP) is also relevant. The site is within in the Newport Locality. The desired character in Part A.10 is described as: Desired Character The Newport locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting, integrated with the landform and landscape. Secondary Dwellings can be established in conjunction with another dwelling to encourage additional opportunities for more compact and affordable housing with minimal environmental impact in appropriate locations. Any dual occupancy dwellings will be located on the valley floor and lower slopes that have less tree canopy coverage, species and habitat diversity and fewer other constraints to development. Any multi unit housing will be located within and around commercial centres, public transport and community facilities. Retail, community and recreational facilities will serve the community. Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport. Future development will maintain a height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise facade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. Development on slopes will be stepped down or along the slope to integrate with the landform and landscape, and minimise site disturbance. Development will be designed to be safe from hazards. A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment, and the development of land. As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, to provide feed trees and undergrowth for koalas and other animals, and to enhance wildlife corridors. Heritage items and conservation areas indicative of the Guringai Aboriginal people and of early settlement in the locality will be conserved. Vehicular, pedestrian and cycle access within and through the locality will be maintained and upgraded. The design and construction of roads will manage local traffic needs, minimise harm to people and fauna, and facilitate co-location of services and utilities. Newport's coastal setting is what contributes most to the distinctive character of the commercial centre. Responsive, energy efficient buildings will support and enhance this relaxed, beachfront character and its outdoor lifestyle, contributing to a unique sense of place. Contemporary design solutions within the commercial centre will respond to Newport's climate and setting, including providing shade and shelter to streets and entries, generous private outdoor spaces, openings that capture ocean breezes, and shade elements. 24Part C of the DCP includes outcomes and controls for solar access (C1.4); visual privacy (C1.5) and private open space (C1.7). Part D of the DCP includes outcomes and controls for the Newport Locality (D10). Evidence 25The Court visited the site and heard evidence from residents, including the local member, Mr R Stokes. Their principal concerns related to size and bulk of the proposal which they considered to be uncharacteristic of the area, particularly its height and length and its appearance from the street and adjoining properties. They stated that the area comprises detached dwelling houses with open space, trees and wildlife and that they had purchased their properties and lived in the area with the expectation that this character would remain, given the council's planning controls. They considered that the proposal would impact on their amenity, privacy and solar access. Adjoining residents were particularly concerned about the orientation of the units to the east-west over their properties and the number of windows and balconies that would overlook their outdoor areas. The owner of 5 Beaconsfield Street referred to the adjoining property (3 Beaconsfield Street) to illustrate the impact of windows and balconies overlooking rear open space and considered this to be an 'inappropriate form of development'. The objectors also raised concerns about the increase in traffic and loss of parking in the street. Mr Stokes supported the concerns of residents. 26The Court heard expert planning evidence from Ms A Allen, for the council, and Mr G Boston, for the applicant. Ms G Morrish, for the council, and Mr N Dickson, for the applicant provided evidence on urban design issues. 27The key issue in dispute between the experts is whether the proposal is compatible with the character of the local area. Before dealing with the merits of this issues it is necessary to address the competing submissions of the parties on the proper planning approach. Planning approach The amending SEPP 28Mr Larkin, for the council, and Mr Staunton, for the applicant, agree that the effect of the amending SEPP is to repeal SEPP (ARH) in its application to development applications of the type before the Court subject to the savings provision in cl 54A(2) and that under s39 (2) of the Land and Environment Court Act , the Court is required to apply cl 54A(3). They further agree that the amendment is 'imminent and certain' but disagree on the weight to be given. 29Mr Larkin submits that 'the effective repeal of the SEPP is a matter to which the Court should attach great weight as a relevant consideration under s79C and of itself is a reason for refusal'. He refers to Terrace Towers v Sutherland Shire Council [2003] NSWCA 289, where Mason P held at [51]: Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(1)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgment of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival". 30Mr Staunton refers to the decision of Lloyd J in Blackmore Design Group v North Sydney Council [2001] 118 LGERA 290 at [30] where His Honour states: Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31Mr Staunton submits that the amending SEPP does not contain aims or objectives nor does it alter the stated aims of SEPP (ARH) in cl 3. In Mr Staunton's submission, the proposal is consistent with these aims and the amending SEPP is not a reason to refuse the application. Findings 32I accept that the amending SEPP is imminent and certain and that it must be given significant weight. However, this does not mean that the development should automatically fail, as it would be prohibited under the amending SEPP. Rather, the 'savings clause still has some work to do'. Clause 54A(2) provides that the application may be determined as if the amending SEPP had not been made. The proposal therefore remains permissible and the aims and relevant provisions of SEPP (ARH) apply. Clause 54A(3) includes the additional requirement that consent must not be granted to the development unless the compatibility of the design of the development with the character of the local area has been considered (the Character Test). This is the key question before the Court. Non discretionary development standards 33The other matter in dispute between the parties is whether cl 14(1) is a non discretionary development standard. 34Mr Staunton submits that in accordance with s79C(2) and s79C(6)(b) of the EPA Act, cl 14 (1) is a non discretionary development standard. The proposal complies with cl 14(1) and therefore its requirements cannot be taken into further consideration in the application of the Character Test and the relevant principles of SEPP 65. 35Mr Staunton submits that if cl 14(1) is not a non discretionary development standard 'then it must follow that there are no non discretionary development standards contained in SEPP (ARH) not withstanding their express identification in clause 3 and the use of the words 'A consent authority must not refuse consent...' which is entirely co-incident with the terminology used in s79C(2)(b) of the EP&A Act to describe non discretionary development standards. This would give the words in cl 3 no work to do'. 36Mr Larkin submits that cl 14(1) is not a non discretionary development standard as defined by s79C(6)(b) of the EPA Act as it is not explicitly or implicitly identified in SEPP (ARH) as a non discretionary development standard and therefore s79C(2) does not apply. 37Mr Larkin acknowledges that it is possible for an instrument to implicitly identify a development standard as a non discretionary development standard but that 'the Court will not, by a process of implication, read words into a statutory instrument which are not there' (see R v Young (1999) 46 NSWLR 681). Further, the onus is on the Applicant 'to identify the terms of the implication, and to explain why it should be made, bearing in mind that what is involved is an exercise in construction' (see Carr v Western Australia (2007) 232 CLR 138 at [6]). 38Mr Larkin submits that the implied identification of cl 14(1) as a non discretionary development standard: is inconsistent with the express terms of cl 16 of the SEPP. In any legal instrument, nothing can be implied that is inconsistent with the express words of the instrument.... (see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20 at [26]) 39In Mr Larkin's submission, the implied identification of cl 14(1) as a non discretionary development standard must be 'something in this policy' which would then affect the application of SEPP 65 as the consent authority 'is not entitled to take those standards into further consideration in determining the development application' under s79C(2). This would affect the consideration of the design principles required by cl 30(2)(b) of SEPP 65 and is therefore inconsistent with the express terms of cl 16 of SEPP (ARH). 40Mr Larkin submits that the implication that cl 14(1) is a non-discretionary development standard must be a 'process of the words actually used in SEPP (ARH)'. The only explicit reference to non discretionary development standards is in cl 3(b) of SEPP (ARH) and there is nothing that connects this to cl 14(1) or that 'requires cl 14(1) in its application to a development of the type before the Court to be a non discretionary development standard in order to achieve the particular purpose specified in... cl 3(b)'. 41Further, Mr Larkin submits that as cl 14(1) is not a non discretionary development standard the consideration of the principles in SEPP 65 and the Character Test is not limited by the restrictions imposed by s 79C(2). Matters such as density, bulk and scale can relevantly be considered despite the developments compliance with the density standard in cl 14(1)(a)(ii). Findings 42Section 79C(2) of the EPA Act provides that: If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authorit y : (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 80 is limited accordingly. 43Section 79C(6)(b) defines non discretionary development standards to mean: "non-discretionary development standards" means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards. 44Section 4 of the EPA Act defines development standard as: "development standards" means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the a r ea, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed. 45Clause 14(1) includes standards that cannot be used to refuse consent which include density and scale, site area, landscaped area, deep soil zones and solar access. These are numerical standards with which the proposal complies. 46I am persuaded by Mr Larkin that for a residential flat development, where SEPP 65 is applicable, cl 14(1) of SEPP (ARH) is not a non discretionary development standard within the meaning of s 79C(2) and 79C(6)(b) of the EPA Act. Clause 14(1) is not expressly identified in SEPP (ARH) as a non discretionary development standard and its implied identification would be inconsistent with the express terms of cl 16. 47The finding that cl 14(1), for the type of development before the Court, is not a non discretionary development standard does not mean that there are no such standards implicitly identified in SEPP (ARH) or that the aims in cl 3(b) have no work to do. 48Even if I am wrong in this conclusion, the development standards in cl 14(1) are 'quantitative' standards whereas a 'qualitative' assessment is required for the consideration of the Design Principles in SEPP 65 and the 'Character Test' in the amending SEPP. While FSR is an aspect of density, scale and building bulk, it is not the only matter to be considered in addressing these principles. Numerical compliance does not preclude an assessment of the location, distribution or arrangement of FSR on a site, the design and articulation of the building in which the FSR is accommodated and its physical impacts. Section 79(2)(a) precludes further consideration of numerical development standard in determining the application but not an assessment of the qualitative aspects of the development. Character Test 49Council raised the contention that the development is incompatible with local context and the Desired Future Character. This contention included a consideration of the design principles in SEPP 65 for Context, Scale and Density and the Desired Character for the Newport locality in the DCP. The parties agree that the evidence in the proceedings on this contention was also relevant to be considered for the Character Test required by cl 54(3) of the amending SEPP. 50A key disagreement between the experts is the extent of the 'local area'. 51Mr Dickson and Mr Boston considered the 'local area' to be the wider context of the site which includes one, two and three storey detached houses, the school, residential flat buildings, multi unit housing, shops and commercial premises. The character of the 'local area' is 'eclectic' and the desirable elements are set out in the locality statement of the DCP. Both experts considered that the proposal responds to the desirable elements and is compatible with the character of the 'local area'. 52Even if the 'local area' is limited to the visual catchment, Mr Boston and Mr Dickson consider that the development is compatible within this context. While the predominant form of development in the visual catchment is two storeys, there are also buildings or elements of building which are three storeys, as well the school and the residential flat building opposite. 53Mr Boston and Mr Dickson consider that the proposed development has responded appropriately to the immediate area. It has a front setback that is consistent with adjoining houses; the front faade has a recess in the middle which breaks up the bulk of the building to the street; the building is two storeys on the high side of the site (eastern) which increases to three storeys on the low side (western) but the upper level is set back 12 to 15 m from the adjoining dwelling; the minimum side setback is 4.5m which increases to a maximum of about 7m at the west and 12m at the east. The Turpentine trees are retained at the rear and large areas of deep soil planting are provided, in excess of the controls, which will facilitate shrubs and canopy planting and ensure that the building sits in a landscaped setting and provides adequate privacy to adjoining development. 54Mr Boston notes that the proposal achieves the FSR, landscaped area and height envisaged by SEPP (ARH) and while the form of development is different to the existing and desired future character of the locality, in Mr Boston's opinion, it is compatible. He refers to the principles of Roseth SC in Project Venture Developments v Pittwater Council (2005) NSW LEC 191 and concludes that the proposal's physical impacts are acceptable and that the proposal's appearance is in harmony with the buildings around it and the surrounding street. 55Ms Morrish and Ms Allen consider the primary locality or 'local area' to be the visual catchment of the site as this is the area within which there is a visual connection between the development and other buildings and the context within which the development will be viewed. They consider that the local character is generally low scale 1-2 storey dwelling houses which, even on battle axe allotments, are orientated to the front and rear of the site with landscaped separation. The proposal is orientated along the side boundaries: creating a bulk and building length that is not characteristic of the area. This creates physical impacts in terms of visual and acoustic privacy, perceived overlooking of existing dwellings by a large number of units and dependency on side boundaries for outlooks for these new units. 56Ms Morrish was particularly concerned about a 60m long and two to three storey building, which, while articulated with different setbacks and materials, she considered introduces a scale of built form that is considerably greater than that which exists or would reasonably be expected in the area. In her opinion, a more appropriate form of development would respond to the current building depth by providing a central open space between a building at the front of the site and a building to the rear. 57Ms Morrish acknowledged that the desirable elements of the wider context should also be considered. However, the pockets of residential flat buildings approved under different planning regimes and/or within different zones are not characteristic of the area or similar to what is proposed and its relationship with adjoining dwellings. They are not desirable elements that should be emulated in future development of the site. 58Ms Allen and Ms Morrish noted that: The desired future character statement states that the goals of this locality are for a primarily low scale residential area with dwelling houses a maximum of two storeys in any one place in a natural setting....any apartment development under the Affordable Housing SEPP should be sensitive to this aim and respond more appropriately to the disposition, footprint and scale of housing adjacent to it. Findings 59The savings provision in cl 54A(3) of the amending SEPP requires a consideration of whether the design of the development is compatible with the character of the local area. 60The parties agree that the terms 'compatible', 'character' and 'local area' are not defined in SEPP (ARH) or its amendment and should be given their ordinary meaning, subject to the context in which they are found. They agree that 'compatible' means 'capable of existing together in harmony' but they disagree on what constitutes the 'local area' and the 'character' of that area. They also agree that to be compatible the development does not need to be the same but should respond to the desirable elements of an area. 61I accept the evidence of Ms Morrish and Ms Allen that the 'local area' is principally the visual catchment in which the development will be viewed. This comprises predominantly detached one and two storey dwellings in spaced, landscaped settings. The wider context is also relevant, but I do not accept that the pockets of residential flat buildings and other built forms define the context to which the proposal should respond or that these are desirable elements that should be emulated by the proposal. 62The Desired Character statement in Part A4.10 of the DCP describes the desirable elements and future character that is sought to be achieved for the Newport locality. It relevantly provides: The Newport locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a landscaped setting, integrated with the landform and landscape....... Any multi unit housing will be located within and around commercial centres, public transport and community facilities. 63Mr Staunton submits that regardless of the area defined as the 'local area' the design of the development is compatible and that the Newport Locality will remain predominantly a low density residential area. 64The Newport locality covers a wider area than the 'local area' in which the development is located. The addition of the proposed residential flat building will not change the character of the wider locality, however, it will impact on the character of the 'local area'. 65A single apartment block, two to three storeys high which extends across the width of two standard allotments and 60m along the length of the site is 'unprecedented within the immediate to longer range distance from the site'. 66The location of residential flat buildings, the school and three storey buildings or parts of buildings within the 'local area' do not change its predominant character or justify the proposal. These development are generally smaller than the proposed development and 'are scattered and isolated and do not reflect the predominant built form nature of single detached dwellings'. 67I recognise that to be compatible, the proposal does not have to be the same as the predominant form of development which creates the character of the 'local area' but it must respond to the desirable elements. The design of the proposal has sought to do this through its setbacks, articulation, materials and landscaping. This has reduced its impact and the disparity between its built form and that of surrounding development but not to the extent that I can conclude that it is compatible or achieves the desired character sought for the 'local area'. 68Clause 30(2)(b) of SEPP 65 requires a consideration of the design quality of a residential flat development when evaluated in accordance with the design quality principles in Part 2. The key principles in dispute between the experts are Context, Scale, Built Form and Density. The areas of disagreement largely reflect the matters which I have discussed above. 69The decision of Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides assistance in considering the proposal against the relevant principles in SEPP 65 and the Character Test. In summary these require an evaluation of whether the proposal 'responds to', 'contributes to' and 'complements' its surrounding area, essentially whether it is 'compatible'. The Senior Commissioner discusses issues and provides principles to assess the compatibility between what is proposed and what exists. 22. There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. ........ 24. Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25. The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26. For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 70In applying these principles, the physical impacts of the proposal are generally acceptable, although the orientation of the apartments east to west over the adjoining properties results in the potential for privacy impacts. These have generally been addressed through setbacks, privacy screens, planter boxes and landscaping, however, there will remain a perception of overlooking. The overlooking of adjoining dwellings from other dwellings is not uncharacteristic of the area, but overlooking by the number of proposed apartments is uncharacteristic and the amenity of private outdoor areas of adjoining properties would be reduced. While this would not be a reason to refuse the application, it is a negative and uncharacteristic aspect of the design of the development. 71The question of whether the proposal is visually compatible with its context has been addressed above. The principal concern being 'the relationship of the built form to surrounding space' which results from the unbroken length of the building. While the building has varying setbacks, it will be clearly visible from adjoining properties and to a lesser extent from the street. It will be softened and screened by landscaping but not to the extent that a building of this length, width and height is compatible. 72In applying the design principles in SEPP 65 and considering whether the design of the development is compatible with the local area, I find that the application must fail and consent refused. Orders 73The Orders of the Court are: 1. The appeal is dismissed. 2. The development application to demolish existing structures and construct an Infill Affordable Housing development at 9 -11 Beaconsfield Street, Newport, is refused. 3. The exhibits, except Exhibit 1, may be returned. Annelise Tuor Commissioner of the Court Amendments 05 October 2011 - Typographical errors 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: 05 October 2011