Land and Environment Court New South Wales Medium Neutral Citation: Allen v Pittwater Council [2011] NSWLEC 1342 Hearing dates: 3-4 November 2011 Decision date: 29 November 2011 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Development Application: Affordable housing; SEPP 65; Whether development is compatible with the character of the local area; impact on adjoining properties Legislation Cited: Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development; State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011; Pittwater Local Environmental Plan 1993; Cases Cited: Project Venture Developments v Pittwater Council [NSWLEC 191] Texts Cited: Residential Flat Design Code; Pittwater 21 Development Control Plan Category: Principal judgment Parties: Gary Allen (Applicant) Pittwater Council (Respondent) Representation: Counsel Mr M Staunton (Applicant) Ms H Irish (Respondent) Solicitors Mr T Sattler Sattler & Associates Pty Ltd (Applicant) Ms N Gillies Mallesons Stephen Jaques (Respondent) File Number(s): 10435 of 2011 Judgment 1The proceedings are an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Pittwater Council (the council) of Development Application No M0749/10 (the application) which proposes the demolition of two existing dwellings, the construction of an affordable housing, residential flat building containing 22 dwellings with associated parking for 29 vehicles and strata subdivision of the completed building. The application was lodged pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). Of the 22 dwellings, 11 are to be used for the purposes of affordable housing in accordance with the requirements of the SEPP for a period of 10 years. 50% (11) are designed as accessible units. 2The main contentions in the case are whether the design of the development is appropriate, particularly in terms of streetscape, concentration of density and setbacks, whether the proposal will adversely impact the amenity of adjacent properties and whether the development is compatible with the character of the local area. The site and its context 3The land to which the application relates comprises two adjoining allotments, Lots 175 and 176 in DP22670, known as Nos 38-40 St Andrews Gate, Elanora Heights (the site) and is located on the northern side of the roadway. 4The site has a frontage of 48.135m, depth of 44.195m and area of 2127.3sqm. To the Immediate east of the site are a number of allotments within a local centre that are serviced from a right-of-way that runs along the common boundary. Currently the site does not benefit from access across this right-of-way however it is intended to obtains the necessary rights so that all vehicular access to the site would be from that right-of-way with the driveway entry to the basement carpark some 30m from St Andrews Gate. The land slopes from a highpoint of approximately RL101 in the south-western corner at the street frontage to the rear, north-eastern corner which is at RL95.73. 5Two dwelling houses are currently erected on the site and are proposed to be demolished to allow construction of the proposed development. A number of trees within the centre of the site will be removed however the majority of perimeter planting including a large Syzygium paniculatum towards the front will be retained. During the course of the hearing, it was confirmed that a row of palms along the site's northern boundary would also be retained. 6The Kalang Road local centre to the east of the site contains a number of retail and commercial premises on both sides of the roadway between St Andrews Gate and Powderworks Road and on its eastern side extending further south of St Andrews Gate. These premises provide for the daily needs of residents of the local area with shops including a small supermarket, newsagent, post office, pharmacy, restaurants, cafes, bakery and liquor store together with a range of business services. 7The centre comprises differing building types ranging from single to three storeys in height. The Elanora Squash Centre is located to the immediate east of the site. This building is a large two and three storey brick, box-shaped building with limited architectural detail in its presentation to St Andrews Gate. There is a new, two-storey retail/shop-top housing development currently under construction at the north-eastern end of the centre and consent has been granted by the council for a three-storey mixed-use development with two level basement carpark at No. 54 Kalang Road, adjacent to the site. 8To the immediate north of Lot 175 (No. 38) is a detached dual occupancy development in a battle-axe configuration and detached dwellings are also located to the north and west of Lot 176 (No. 40) and along the length of St Andrews Gate. Background and the proposal 9The original application was lodged with the council on 24 December 2010 and proposed an affordable housing development in the form of a residential flat building containing 24 dwellings. The plans submitted were amended in an attempt to address concerns raised by the council in its initial assessment of the proposal however no change to the number of units was made. The council determined the application by refusal at its meeting of 17 October 2011. The reasons for refusal related to the unsatisfactory design of the development, particularly with regard to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65), the Residential Flat Design Code (RFDC) and the council's planning controls; the impact of the development on the capacity of the right-of-way; impact of the development on adjoining properties; inconsistency in plan details and that the development is not compatible with the character of the local area due to the unacceptable physical impacts that erode the level of residential amenity that is characteristic in this local area. 10The Court has granted the applicant leave on a number of occasions to rely on amended plans. The most recent leave granted was on the day prior to the hearing when further amendments to the plans involving treatment of proposed balconies to the rear, upper floor of the building, deletion of two upper level rear balconies and the relocation of a basement garbage store were made. In determining the Notice of Motion, the respondent argued that the changes should be renotified and sought vacation of the hearing dates. In granting leave to rely on the amended plans, the Court determined that the impacts of the amendments were not significant, the appearance of the building when viewed from the public domain did not change to any extent, the changes had minimal environmental impact and for that reason would not require re-notification. Accordingly, the dates were not vacated and the matter was heard on 3-4 November 2011. 11The plans currently before the Court propose the construction of a basement carpark accommodating up to 32 cars of which one would be an accessible space however, the plans provide for a total of 29 spaces, of which nine are accessible and thereby utilising the additional spaces to facilitate access. The basement protrudes above ground level at the north-eastern corner of the building. 12The proposed strata plan provides for 27 spaces to be allocated to individual units and 5 as common property. A waste room, fan room, storage areas, detention tank and rainwater collection tank would also be provided at this level with two lifts and two stairways providing access to the upper residential floors from the basement. Access to the basement would be from a ramp via a 3.665m right-of-way to be registered over the adjoining land to the east. 13The ground and first floors are a U-shaped structure erected around a central courtyard accessed from a pathway of St Andrews Gate. The main entry divides the building as it presents to St Andrews Gate into two separate elements and the internal courtyard provides seating, a pond and areas for passive recreation. Open galleries at ground and first floor levels provide access to individual units. 14The ground floor comprises 10 dwelling units and the lower level of 2 x two storey units. The upper floor also contains 10 units and the upper floor of the two-storey units. The dwelling mix proposed is: 16 x 2 bedroom units 2 x 1 bedroom plus study 4 x studios Of the 22 units, 12 would be accessible, all of which are 2 bedroom units and units 6-12 and 18-21 would be used for the purpose of affordable housing. All of the studio units, the one bedroom plus study units and five of the 2 bedroom units would be affordable housing and five of these are also accessible units (units 10, 11, 12, 20 and 21). 15The building would be concrete construction with rendered and painted walls and a combination of pitched and flat roofing. Extensive perimeter landscaping is proposed to complement the trees to be retained on the site. The planning controls 16The site is zoned Residential 2(a) under Pittwater Local Environmental Plan 1993 (the LEP) and residential flat buildings are prohibited in that zone. The LEP does not contain any specific zone aims or objectives. 17SEPPARH applies to the site so that the proposal is permissible due to its savings and transitional provisions. Clause 54A(2), inserted by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 (the amending SEPP) 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 commencement, the application may be determined as if the amending SEPP had not been made. 18The amending SEPP also introduced additional matters for consideration and those are details in cl 54A(3) and (4) as follows: (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. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. 19Amendments made to SEPPARH on 20 May 2011 have the effect of prohibiting infill affordable rental housing in the form of a residential flat buildings on the site but for the savings and transitional provisions as the site would not be within an accessible area under the terms of the amending SEPP. 20Clause 16 of SEPPARH requires the application of SEPP65 and it was agreed during the hearing that the development would be a three-storey building due to the height of the basement above ground level at the north-eastern corner of the building. The Court notes that the majority of the building would be two stories however, the provisions of SEPP65 apply and require consideration of relevant design quality principles, in particular context, scale, built form, landscape, amenity and aesthetics and all other relevant provisions. 21Clause 32(2)(c) of SEPP65 requires a consent authority to take into consideration the RFDC. Of the primary development controls and site and building design considerations within the latter document, the council contends the controls for side and rear setbacks, building entry, pedestrian access, building configuration and facades are relevant to the proper assessment of the application. 22Pittwater 21 Development Control Plan (the DCP) applies to the site and for the purposes of that plan, the site is within the Elanora Heights Locality. The context of the locality is described at A4.5 and that relevant to the application is: the locality has developed into a predominantly low-density residential area, with dwellings built along plateau and slopes. The locality is characterised mainly by one and two-storey detached dwellings on 700-950 square metre allotments..... 23The desired character of the locality is also defined and that relevant is: The Elanora Heights 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. 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........ 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, and to enhance wildlife corridors. Vehicular, pedestrian and cycle access within and through the locality will be maintained and upgraded. 24Other relevant controls contained in the DCP are those relating to Landscaping, Visual Privacy, Acoustic Privacy, Adaptable Housing and Accessibility and Character as viewed from a public place. The issues 25The contentions in the case are whether the proposed development: * will have unreasonable visual and acoustic privacy and amenity impacts, particularly on the adjoining residential property at No. 176A Powderworks Road; * is compatible with the character of the local area; * is of an acceptable standard of design; * is of excessive density, particularly in its north-eastern corner; * provides sufficient detail to allow proper assessment of the application. The evidence 26The hearing commenced on site when the Court, the parties and their experts, undertook a view of the site and its locality. This included an inspection of the adjoining right-of-way, a walk through the Kalang Road neighbourhood centre and continued around the block along Powderworks Road where the Court inspected No. 176A and was referred to the range of development in that street, in particular a development used as a group home and a seniors housing development further to the west. The group proceeded to Elanora Road and then back along St Andrews Gate to the site. 27Evidence was heard on site from a number of residents, all of who objected to the application. The concerns of the residents are summarised as follows: * Development would be too large, an overdevelopment of the site, is of excessive bulk and scale and is out of character with the area; * Traffic would be excessive, and dangerous in a road with poor sightlines and without kerb and guttering; * Adverse amenity impacts, particularly in relation to acoustic and visual privacy; * Poor design, inadequate setbacks from boundaries; * Development is not anticipated within the 2(a) zone, i.e low density residential; * Loss of property values; * Loss of significant trees; * Site is not well serviced by public transport; * Inadequate parking provided; * Stormwater and runoff; 28Expert evidence was heard from: For the applicant For the council Mr N Dickson (urban design) Ms D Ridenour (urban design) Mr G Boston (town planning) Mr G Edgar (town planning) Ms T Dobson (landscape architecture) In addition, Mr R Fitzgibbon, the project architect provided evidence to the Court in relation to the plan details and confirmed particular levels that affected determination of building height and proposed finished levels that had been in dispute between the parties. He confirmed that the height of the proposed building would comply with the 8.5m height control contained within the DCP. Impacts of adjoining properties. 29No. 176A Powderworks Road (No. 176A) is a detached, single storey dwelling house approved as a dual occupancy development. It is accessed via a battle-axe handle and is sited 2m from the common boundary with the site. This setback was imposed by the council under a specific consent condition that reads as follows: 21. The proposed rear dwelling shall be relocated to at least 2m from the southern boundary in order to provide a more viable area for growth of proposed screen trees between that building and the fence. 30The purpose of the screen planting was to provide a screen up to 2.5m in height between the dwelling to be constructed at No. 176A and No 38 St Andrews Gate. The latter property forms part of the site. The plans lodged with the council for No 176A proposed for a 1.5m setback to the common boundary and showed landscaping along the boundary in locations adjacent to all windows within the southern faade of the proposed dual occupancy dwelling. It was agreed during the hearing that the treatment of the required landscaped area at No 176A did not comply with the details shown on the approved plans. 31The application provides a minimum setback of 4.5m from the rear boundary with all external walls at least 9m from the windows to habitable rooms within the dwelling at No. 176A. The ground floor terraces to units 7-9 and part of the upper floor terrace to unit 19 are within that 9m setback. At its closest point, the balconies are 6.67m from the rear wall of No. 176A and external walls are a further 2.5m to the south. As stated above, the plans before the Court combined four units into two and deleted the upper floor terraces which were opposite the kitchen and dining room of No. 176A. Amended privacy screens were also included on the plans in accordance with the details recommended by Mr Boston in his expert report so that they are fixed rather than the moveable screens initially proposed. Mr Dickson says that the 4.5m setback is consistent with the council's setback controls for rear boundary setbacks. Both he and Mr Boston are of the opinion that the compliant rear setbacks and associated spatial separation afforded between the principal living and open space areas of the adjoining properties, coupled with the proposed fixed privacy screen treatments and intervening landscaping proposed on the site will provide appropriately for visual and acoustic privacy between properties. 32The experts did not agree as to the location of the principal open space for No 176A. Mr Dickson and Mr Boston consider it to be the area to the north of the building accessed from the principle living area (via the entry hall) however Mr Edgar says that, due to the small size of all available outdoor areas and the location of play equipment, the loss of useability of and privacy to any of the available spaces would be unreasonable. 33Mr Edgar says that the concentration of density of the development (there are now 10 units within 9m of the external walls of No. 176A, of which 3 have upper level balconies, all incorporating privacy screens) in the north-east of the building would significantly erode the sense of territory and safety, actual and perceived visual privacy of the occupants of No 176A, contrary to the requirements of the DCP. In addition, he says that the separation distance is inadequate to address acoustic privacy and cites the RFDC, which suggests separation distances for buildings up to 4 storeys of 12m between habitable rooms/balconies, 9m between habitable rooms/balconies and non-habitable rooms and 6m between non-habitable rooms. He does not consider that the combination of the four studio units to two x one bedroom/study units nor the alternate layout proffered by the applicant as exhibit P (amending internal layout to remove study so units are genuine one bedroom units) go far enough to address his concerns. 34Similarly, Ms Ridenour says that a separation of 12m is appropriate given that the site is in an area zoned to allow detached dwellings and dual occupancies and not residential flat buildings. She says that it is a reasonable expectation that the residential flat building would bear the greater burden of separation across the rear boundary and concludes that the 4.5m rear setback is unacceptable in meeting the separation of the RFDC and results in a greater impact on the single dwelling than on the proposed units. 35Mr Edgar is also concerned in relation to the setbacks provided between the proposed building and the shop-top housing development that the council has approved at No 54 Kalang Road. He notes that the consent requires the construction of a 3m high acoustic barrier to protect the adjoining residential development (the site and No 176A) and that the development, which contains 2 commercial suites and 5 residential units, provides a separation distance of more than 9m between the edges of the balconies of these future units and the boundary with No. 176A. Mr Boston concedes that the side boundary setback adjacent to units 8 and 20 (the eastern boundary) is not compliant with the DCP however he says that the setback is appropriate, has provided for the retention of the major tree as required by the DCP and that the residential amenity of the proposed units will not be impinged. Compatibility 36Clause 54A(3) of SEPPARH requires that consent cannot be granted unless the Court takes into consideration whether the design of the development is compatible with the character of the local area. 37The experts hold different views in regard to the characteristics of the local area. Mr Edgar says that it is to be considered in the visual context of the immediately adjoining properties, the St Andrews Gate streetscape and the Elanora Heights locality. Ms Ridenour says that it is the block itself and how the buildings and landscape sit within it as well as the St Andrews Gate streetscape. She says that the character is defined by the physical attributes of the area and the council's desired future character as outlined in the DCP (and summarised in [23]). It is her view that the physical characteristics of the area that establish the level of amenity expected between properties can be defined by the relationship of buildings to each other, to their site and to their private open spaces. In particular, she says amenity is created by the pattern of rear gardens as private open space, where little development occurs, so as to reduce conflicts at rear boundaries; houses which typically orient most habitable rooms and verandas/decks toward the street and toward the rear garden, thereby minimising overlooking of their neighbours; narrow building frontage to side boundaries with minimal side to side overlooking and trees and vegetation along side boundaries that screen adjoining neighbours. It is these characteristics that reinforce the council's character statement which references the "spatial characteristics of the existing built and natural environments" and states that "built form is secondary to landscaping". 38Mr Dickson says that whilst the site is located in a residential zone, it immediately adjoins a commercial neighbourhood centre and the bulk and scale of the development proposed is consistent with other medium density development in the immediate vicinity including the recently approved shop-top housing at 54 Kalang Road, the seniors living development at 182-184 Powderworks Road and other mixed use developments within the Kalang Road centre. With regard to the character of the area, he cites the wide verge along St Andrews Gate, puts weight on the spacing of the building elements and the landscaped setting and considers the building is consistent with that character and an appropriate transition with the adjacent squash court. Mr Boston shares similar views and says that the site's visual catchment is not low density in nature and the commercial/retail precinct and the multi-unit housing all contribute to the character of the area as viewed from the site. Accordingly, he says the levels of amenity reasonably expected in such a context cannot be compared to that expected in a predominantly low density residential area characterised by detached dwelling houses however he considers that the proposed development will maintain appropriate residential amenity to No 176A. 39Ms Ridenour says that the minor variations to the pattern of development she described (i.e. the dual occupancy and seniors living development) are the result of building forms and setback, which are not permissible under the DCP, are not acceptable precedents for future character. She says the design of the development provides for too much building in the rear at the expense of landscaping. 40Mr Edgar applies the tests of compatibility in Project Venture Developments v Pittwater Council [NSWLEC 191]. He says the physical impacts of the development are unacceptable because of the likely detrimental amenity impacts of the development on the privacy of the occupants of No. 176A which are caused from the density of development adjacent to that dwelling and the inadequate building separation provided. It is his opinion that for the development to have a compatible character within its surroundings in relation to physical impacts, these impacts should be primarily absorbed and ameliorated within the boundaries of the site rather than changing the character and quality of the surrounding locality by reducing the amenity of surrounding properties to a level that would not be typical or reasonably anticipated within a low density residential area. This leads him to conclude that the physical impacts of the development are not compatible with the character of the local area, as they would be eroding the quality of that character. 41Mr Boston applies the same test but draws a different conclusion. He says that the visual impact of the buildings is ameliorated to a large extent through the spatial separation afforded, the modulated and articulated building form and the quantum and quality of the intervening landscape elements proposed and concludes that the proposal's physical impacts on surrounding development are acceptable and will not impact on the future development potential of such properties. With regard to whether the building appears to be in harmony with its surroundings, he says that the development would sit comfortably below the 8.5m height development standard and provides for heights that are entirely commensurate with the height of detached dwelling houses and medium density housing throughout the locality, maintains the scale and rhythm of St Andrews Gate and appropriately addresses the street providing an appropriate streetscape presentation. He concedes the streetscape character will inevitably be changed however he says that it will not be perceived as inappropriate having regard to the built form characteristics established by development within the site's visual catchment and within the Elanora Heights locality generally. 42With regard to the question as to whether the appearance of the development is in harmony with the local character, Mr Edgar acknowledges that the site is on a zone boundary with commercially zoned property to the east which has a denser character of building with less setbacks and less landscaping. It is his opinion that the 3 storey commercial building at 50 Kalang Road, to the immediate east of the site, dominates the character of this section of St Andrews Gate in a negative and imposing way due to it bulky appearance and poor aesthetics and is not a good example of development to emulate. He concedes that in this context, the proposed development is not significantly visually out of character with the buildings around it with regard to its basic scale such that it could be considered to be completely incompatible with the character of the local area in terms of its comparative scale to surrounding development. However, he says the development does erode the visual quality of the streetscape of St Andrews Gate because of its design quality, density and the excessive bulk intruding into the central courtyard and visible from the street. Design 43Both Mr Edgar and Ms Ridenour are critical of the building design, which they say is inconsistent with the requirements of the DCP. Mr Edgar cites the objectives of Section D5.1 of that DCP which specifically apply to the Elanora Heights locality and states: To achieve the desired future character of the Locality. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing built and natural environment. To enhance the existing streetscapes and promote a scale and density that is in keeping with the height of the natural environment. The visual impact of the built form is secondary to landscaping and vegetation, or in commercial areas and the like, is softened by landscaping and vegetation. High quality buildings designed and built for the natural context and any natural hazards. and says that the development does not possess the level of architectural interest and detail in its design to be accurately described as "enhancing the existing streetscape" or "a high quality building" due to the lack of any imaginative design detail and architectural interest in the front elevation of the development as well as the portion of the east elevation that will be visible from the street. He is also critical of the faade of the building, which he says has a fortress like appearance, lacking windows, articulation and separate entries to the street and of the courtyard design due to the lack of separation between units, poor utility of the area and the fact that it forces the proposed units to be designed such that their living areas and courtyards face towards adjoining properties with the consequent amenity impacts described above. 44Ms Ridenour says that the choice of a courtyard building type limits the capacity of the development to achieve key elements that define the streetscape character of Elanora Heights, namely the backdrop of canopy trees and the regular rhythm of planting along side boundaries. She also references the DCP provisions which she interprets the character being created by the dominance of landscape with built form a secondary consideration and says that the courtyard building form does not respond to the three key elements that reinforce the landscape pattern of the area being mid-block tree planting and canopy trees, boundary and front garden planting. 45Much of her criticism of the faade has been addressed by the applicant in the amended plans before the Court other than the issue of distinguishing the front elevation by way of entry features however she maintains the reliance on screening to ameliorate visual issues means that the development does not fit, nor does it benefit from any positive internal amenity because she considers the courtyard area to be a "lovely lobby and airwell" rather than benefit the development. 46Mr Boston says that the amendments made to the plan ensure that there is an appropriately articulated faade with appropriate fenestration and streetscape presentation consistent with the scale and rhythm of development within that streetscape and affords good levels of amenity to the internal communal open space and circulation areas. He says that the orientation to the north and the provisions of SEPP65 dictate the street presentation and that the site potential should be optimised. 47It is Mr Dickson's opinion that the proposed design has merit generally, is of a compatible bulk and scale, particularly given the adjacency to the neighbourhood centre and provides a transition from the large, bulky 3 storey building to the east and the neighbourhood centre with its mix of 1, 2 and 3 storey buildings. Within the particular context of the St Andrews Gate streetscape, he says the 2 storey presentation of the building to the street provides a reasonable transition from the 3 storey squash centre to the 1 storey dwelling with pitched roof immediately to the west of the site. He says the articulation of the front building line is not unreasonable given the separation (entrance to the courtyard) between the two building forms within the streetscape and considers the courtyard design to be the preferable answer for the site, providing good amenity to be enjoyed by residents of the scheme and responds to the street. 48The applicant's experts note that the proposed development provides for a total landscaped area of 47.35% which is well in excess of the 30% SEPPARH development standard and marginally below the 50% DCP control for medium density housing. 49Ms Dobson says the proposal has been designed with adequate space within the front and side building setbacks to provide appropriate screen planting of a variety of heights and form and that the scale, density and mature heights of the proposed vegetation will complement and screen the built form and result in a leafy residential setting, consistent with the Elanora Heights character statement. Density 50The experts agree that the development satisfies aims 3(a) to (e) and (g) of SEPPARF however Mr Edgar notes that such aims would only be achieved for the 10 year period during which the affordable housing component was leased as such and that after that period the development would not contribute to the demand for affordable housing in the area and therefore sees it as a temporary solution with lasting impacts. 51It is also agreed that the floor space ratio (FSR) of the development is 0.745:1 and therefore below the 0.75:1 density threshold in Clause 14 of SEPPARH. The Court notes that pursuant to clause 14(1)(a), density and scale, is one of the standards that cannot be used to refuse consent. 52It is the council's position that the proposed density is not consistent with the SEPP65 design quality principle for density, is not characteristic of residential zoned land in the locality and is inconsistent with the desired future character for the Elanora Heights locality as expressed in its planning controls. The SEPP65 provisions in Principle 4 - Density states: 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. 53Mr Boston says that the nearby group home and seniors living development reflect the desirability of the locality for medium density development and that its proximity to the Kalang Road centre is consistent with the SEPP principle and also the future character statement contained in the DCP which identifies multi-unit housing being located around commercial centres. His opinions with regard to compatibility lead him to conclude the density of the development is appropriate. 54Mr Edgar says that the amendments made to SEPPARH are relevant considerations, in particular the fact that development of a residential flat building on the site would no longer be permissible due to the fact that the site is not within an accessible area. He says that this change is consistent with the density principle contained in SEPP65. It is his opinion that as SEPPARH would now only permit dual occupancy development on the site, the council's planning controls should be a guide to what density is appropriate for the local area and he compares the density allowed by the DCP for shop-top and multi-unit housing despite this form of development also being prohibited on the land. He says that those densities would yield 14 and 10 dwellings respectively and therefore, as the density control contained within clause 14(1)(a) is not a non-discretionary development standard, a qualitative assessment of the proposal is also required under SEPP65. He concludes that proposed density on a site within a low density residential zone is excessive, not consistent with the SEPP65 design quality principle and inconsistent with the desired future character of the locality. Adequacy of Information 55It was apparent during the hearing that the original contentions of the council with regard to lack of detailed information were well-founded. The amended plans go some way to addressing some of the issues however, further information was required with regard to levels, cross section details, colours and finishes and inconsistency between architectural and landscape plans. 56These issues were overcome through evidence provided by Mr Fitzgibbon and the tender of additional plans and details. Issues raised by residents 57The contentions addressed many of the issues raised by residents and they are discussed in this judgment. The council did not press the issue of traffic, property values, parking or stormwater and accepted the report of Mr R Dowsett (Exhibit H) that concludes the traffic generated from the site will have minimal impact on the surrounding road network and nearby intersections and junctions, the proposed access arrangements and sight distances available for emerging traffic to approaching traffic flows on St Andrews Gate meet the safety requirements in the relevant Australian Standard, the parking provision and layout arrangements meet or exceed the relevant design and numerical standards and that there will not be any adverse traffic, parking or traffic related environmental implications resulting from the development. 58The Court notes that SEPPARH requires parking to be provided at the rate of 0.5 spaces per dwelling or 11 spaces and therefore the 29 spaces proposed are well in excess of that requirement. 59Conditions of consent have been recommended that require the construction of footpath, road shoulder, drainage and kerb and guttering adjacent to the site and are agreed between the parties. The conditions 60Draft conditions tendered by the council as Exhibit 6 are also agreed with the exception of conditions B6 and C6(b)(v). 61Condition B6 requires: Matters to be incorporated into the development and maintained over the life of the development: i) All utility services including overhead power supply and communication cables located in the adjacent road verge are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost of the developer. ii) The adjustment of all public utilities and services is to be at the full cost of the developer. iii)Street lighting facilities to the development street frontage of the site in the existing Public Road reserve are to be provided at the full cost of the developer and in accordance with the requirements of Energy Australia. Condition C6(b)(v) requires: The plans required by Condition C5 are to include and provide for the following matters: W orks in relation to that part of the St Andrews Gate frontage of the development site and including the works in relation to the vehicular access to the Development: ...... v) Street landscape, including street lighting and sign posting; 62The applicant objects to the requirement to underground the power supply adjacent to the site. The council says that this requirement is consistent with the controls in PartC1.20 of the DCP. Those controls apply to group buildings; multi-unit housing; residential flat buildings (2 and 3 storey) and seniors housing. The outcomes of the clause are: Visual pollution by aerial cables is reduced Improved safety by removal of visual clutter Opportunities for street tree planting is enhanced Safety of building occupants is maintained and enhanced Security of utility services is improved. Design and construction of undergrounding is funded by the developer. The relevant Controls are: All existing and proposed utility services to the site, or adjacent to the site within a public road reserve, are to be placed underground for the total frontage of the site to any public road. Design and construction of the undergrounding of utility services is to be at full cost to the developer. Variations are considered as follows: Based on technical practicalities and advice from the energy supplier the merit for not proceeding with undergrounding of utility services will be considered for the following circumstances subject to achieving the outcomes of this control: electricity wires carrying 16,000 volts, 33,000 volts or more, and/or short lengths of overheads of two spans or less. 63The applicant has not provided any advice from the energy provider however relies on the short length of the overheads, which are two spans along St Andrews Gate, for an exemption to the requirement to place the lines underground. Conclusion and findings 64There is no dispute between the parties that the application satisfies all of the quantitative controls contained within SEPPARH. The key disagreement between the parties is the qualitative assessment required and in particular, whether the development should be allowed following an assessment of the character test required by cl 54(3), consideration of the design principles under SEPP65 and whether the impacts of the proposal, particularly as they effect No 176A, are such that the application should be refused. The character test 65The savings and transitional provisions contained in clause 54A(3) of SEPPARH require consideration of whether the design of the development is compatible with the character of the local area. There is general agreement between the parties that the application is to be assessed against the character of the visual catchment and also the desired character as described in the DCP. 66There is also agreement between the experts that the local area, whilst primarily a low density residential area, also contains a mix of multi-unit housing and, I consider, importantly in this case due to the proximity of the site, the Kalang Road neighbourhood centre. Where the views are contrary is the weight to be applied to that built form that is not in the form of detached housing. I also accept that the character of the area is defined by the extent of landscaping, large allotments and buildings in a landscaped setting. What I must determine is whether the application, if approved, would provide a development that is compatible with that character. The test is not whether the development is the same as development in the local area, it is whether it responds to the desirable elements of the area, whether it can exist in harmony with adjoining development and whether the physical impacts of the development are acceptable. Such tests are well documented in Project Venture where an assessment of whether a development 'contributes to', 'responds to' or 'complements' its surroundings can determine whether it is compatible . 67With regard to the physical impacts of the proposal, I consider that the amended plans satisfactorily address the issue of visual and acoustic privacy through the deletion of upper floor balconies in the vicinity of No 176A, which increase the building setbacks to an acceptable distance, together with the use of fixed privacy screens, door detailing to include louvres and the amalgamation of units. It is agreed that the development does not adversely affect solar access to adjoining properties and the SEPP65 requirements for the units with regard to the quantitative requirements for solar access and cross ventilation have been certified (Exhibit C). The retention of existing trees and the implementation of landscaping proposed will also provide a visual screen and ensure that the building sits within a landscaped context. 68In determining whether the development will sit in harmony with the buildings around it and the surrounding street, I have regard to the desired character for the Elanora Heights locality. I consider the objectives of the locality statement will be met and that whilst the development is not in the form of dwelling houses, it will present to St Andrews Gate as two buildings of similar scale to other dwellings in that street and will appear in a landscaped setting. As an affordable housing development, its proximity to the Kalang Road neighbourhood centre is, in my opinion, an appropriate location for such a development and is consistent with the Elanora Heights character statement. I accept the evidence of Mr Dickson that the design of the building is an appropriate transition between that centre and the detached housing in St Andrews Gate. I do not however agree that any different amenity should be contemplated from that of a low-density environment and consider, with further changes detailed below, that the design will result in an acceptable level of amenity. 69The development will sit at a height below the tree canopy and has been designed to minimise bulk and scale when viewed from a public place however, by its nature and as anticipated by SEPPARH, will be larger than other dwellings in the local area however, smaller in scale to those buildings within the neighbourhood centre. Existing and new native vegetation, including canopy trees will be integrated with the development and the building is of contemporary design. With the changes made to the faade by the applicant and those further changes required by condition C13 together with the colour palette proposed (Exhibit F), I am satisfied the built form will be consistent with that espoused in the character statement and will be visually compatible with its context. Accordingly, I find that the design of the development is compatible with the character of the local area. SEPP 65 70I agree with Mr Edgar that the provisions of SEPP65 require a qualitative assessment of the controls contained within SEPPARH and that the standards within cl 14(1) of the latter policy are not non-discretionary development standards within the meaning of s 79(2) and (6)(b) of the Environmental Planning and Assessment Act 1979 (the Act). I note that the development compiles with all of those numerical standards however, pursuant to the provisions of cl 16 of SEPPARH, nothing in that policy affects the application of SEPP65. 71With regard to the density control, I am satisfied that the dwelling yield proposed for the site is suitable for the area and responds to the context, availability of infrastructure, public transport (noting that limited bus services are available on weekends), community facilities and environmental quality. Mr Edgar's suggestion is that an appropriate dwelling yield for the site would range from 10 - 14 units based on the council's density controls for shop-top and multi-unit housing. These controls determine the number of dwellings based on site area rather than dwelling size or population. The total floor area proposed in the application is approximately 1584sqm distributed in 22 units, an average of 72sqm per unit due to the smaller size of the units being studio, I and 2 bedroom dwellings (a total of 34 bedrooms and 4 studios). In this regard, I concur with the evidence of Mr Boston that the council's density control would encourage large 3+bedroom dwelling rather that smaller, affordable units. On that basis, if all units were 3 bedrooms, a total of 30 - 42 bedrooms could be anticipated and 40 - 54 if all were 4 bedroom. For that reason, I do not consider the density of the development is excessive. 72I do however consider that the concentration of the population in the vicinity of No176A is a qualitative consideration and for this reason, support the alternate layout for the two storey units, Nos 8 and 9 as proposed by the plans in Exhibit P. These plans ensure that the units are 1 bedroom only and therefore reduce the population of that portion of the building. In addition, the changes discussed during the hearing to increase the side boundary setback to 4.5m adjacent to units 10 and 20 should be made and those units should comprise one bedroom only. The setback to the northern boundary of those units should be a minimum of 7m (both wall and balcony). This will increase the area available for landscaping, reduce the population of the development to an acceptable level and ensure the building appears in a landscape setting. Impacts on No176A 73I am satisfied, for the reasons outline above with the additional amendments, that the development is appropriately designed to address its physical impacts on No176A and the other adjacent properties and that the objectives of the controls in the DCP are met. By the nature of the development, it will be different to detached housing and there will be some change to the amenity currently enjoyed however I am satisfied that the change will be generally acceptable and is the type of change which is inevitable under the provisions of the policy which provide for density bonuses in terms of FSR to facilitate the provision of affordable housing. Conditions 74It is appropriate that the applicant bear the cost of necessary works within the road reserve to ensure the safe and effective movement of vehicles and pedestrians to and from the site and that appropriate street lighting be provided. I also consider that the requirement to underground the electricity and communication lines at the frontage of the site is reasonable given the importance of the street tree plantings and plantings within the site necessary to maintain the character of the area. All services to the site should also be underground to ensure that there is no need to prune trees within or adjacent to the site. For that reason, it is appropriate to impose all of the conditions proposed by the council. Orders 75The Orders of the Court are: 1.The appeal is upheld 2.Development Application No M0749/10 (the application) which proposes the demolition of two existing dwellings, the construction of an affordable housing residential flat building containing 22 dwellings comprising 14 x 2 bedroom, 4 x 1 bedroom and 4 x studio units with associated parking for 29 vehicles and strata subdivision of the completed building at Nos 38-40 St Andrews Gate, Elanora Heights is approved subject to the conditions in accordance with this decision. 3.The exhibits, other than Exhibits 2, A, D, O and P are returned. Sue Morris 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: 29 November 2011