Land and Environment Court New South Wales Medium Neutral Citation: Lonergan v Ashfield Municipal Council [2011] NSWLEC 1378 Hearing dates: 24 November 2011 Decision date: 24 November 2011 Jurisdiction: Class 1 Before: Murrell C Decision: (1)The appeal in respect of number 12 The Avenue, Ashfield is upheld. (2)Leave is granted for amended plans and the applicant, under s 97B, is to pay the respondent's costs in the sum of $4,000. (3)The development application submitted to Ashfield Council and as amended and shown in exhibit W for a 19 room boarding house and manager's unit is granted consent, subject to the conditions in annexure A. (4)The exhibits are returned to the parties with the exception of 1, 9, D, P, W and X. Catchwords: DEVELOPMENT APPLICATION APPEAL Affordable housing - impact on character of area and impacts on adjoining properties: overshadowing; visual and aural privacy. Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Cases Cited: Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 Category: Principal judgment Parties: Mr P Lonergan (Applicant) Ashfield Municipal Council (Respondent) Representation: Counsel Mr G McKee (Applicant) Mr S Patterson (Respondent) Solicitors McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10366 of 2011 Judgment 1The applicant in these proceedings is seeking to demolish the existing two storey dwelling house and construct a new residential boarding house under the affordable housing SEPP at 12 The Avenue, Ashfield. 2The subject site also has a rear boundary to a laneway off Highway Avenue. The area generally is one that is a very pleasant leafy area and the streetscape trees dominate and provide a cohesive thread to the varied residential development style buildings. There are many very older, some heritage, others not, buildings within the street and a number of residential flat buildings and dwelling houses. 3The area contains established trees, not only in the streetscape but also in terms of the individual properties. From the aerial photograph it can be seen that there is a varied subdivision size within the area. The subject site is some 500 m walking distance to Ashfield Station and it is noted, to the north two residential away there is a reserve and the western suburbs railway line. 4The Court has the benefit of hearing expert evidence from urban designers Mr Jeff Baker for the Applicant and Mr Tim Williams for the Respondent. The town planner that gave evidence are Mr Andrew Minto for the applicant and Mr Adelay Bas for the respondent council. The traffic are: Mr Craig Hazell for the Applicant; and Mr Boris Muha for the Respondent. The acoustic consultants are Mr Neil Gross and Mr Neil Koikas for the Applicant. 5By way of background, the proposal when I came to the Court, there were a number of contentions identified in counsel's statement of contentions, which I will go to shortly. I will also say that, as happens with many applications that come before this Court, there were amendments to the plans that are not considered to be minor. The Court did grant leave and the applicant accepts a costs order in terms of 97B for the amended plans because of the additional assessment required. 6The Court met on site with the parties and also heard from a number of resident objectors. In terms of the resident objectors the Court heard from, the property owners of units at No 10. Overshadowing of the courtyard was a concern and it was stated that this is an area where children from the residential flats play. Concern was also expressed about the noise that may be generated from nineteen units and other subletting issues that were a concern to the owner of a unit in No 10. 7The resident at 6 Highway Avenue the owner expressed concern about car parking in the area being at a premium and from No 7 The Avenue, concern was expressed about the industrial design of the building not fitting with the character of the area and the boarding house was not appropriate for the subject site and would impinge on the current openness of the streetscape. 8The owner of a unit at No 11 is concerned about the high turnover of tenants and that there would be junk on the street and that there would be more than two people per unit, saying you cannot put people in small places as this leads to mental stress and problems for existing residents and it would place extra demand on the reserve and this was not reasonable. 9The owner of 8 Thomas Street expressed concern about the impact on the residential area and the proposal he considered to be commercial in nature. The reserve was also of concern, in terms of student occupants and alcohol and the fact that there was an over saturation with traffic in the area. 10A unit owner at 14 expressed concerned that this was a commercial development, not affordable housing, and existing residents had made their home within the area and the purpose of the building does not match the adjoining residential buildings. It is not apples and oranges and that a sense of home would be diminished by the proposed development. Concern about no off street parking and recreation facilities having regard to the ambiance of the street, the proposal does not fit in. Traffic was also once again expressed as a concern and the height of the building and the architecture. 11Another unit owner at No 14 expressed concern about crime from around the area and the limited areas for socialising and the set backs are less than prescribed. Social impact of the proposal and that there are already sixty-seven dwellings in the street and people are selling up because of concern about the adverse amenity impacts on the street. 12As I stated, there were amendments made to the plans and they became exhibit W, the final set of plans in the proceedings. The council provided a statement of facts and contentions that the proposal should be refused as it is not compatible with the character of the local area. This includes: the floor space ratio in that the floor space ratio of the residential 2A zone in which the proposed development will sit is 0.75:1 and the proposal is near 1:1; the built form takes up nearly the entire site with excessive site coverage; the basement parking projects above natural ground level. Urban design issues were raised in terms SEPP 65, that is the context and scale of the proposal, the built form, the density, landscape and amenity. 13Overshadowing on certain units at Nos 8 to 10and the Ushaped courtyard within the proposed development, which sits approximately mid block. Aural and visual privacy was raised as a concern, as it will result in unacceptable aural and visual privacy on adjoining properties. In particular, separation distances were raised and the set backs on the side boundaries was raised as a concern. 14The access way to the upper levels of the boarding house were also raised as a concern. Concern for the access for people with disabilities and an access path to the disabled toilet that is in the front of the building off the common area and the path required to be travelled if disabled persons were visiting others within the building. Internal amenity impacts were also raised and the design of the basement parking aisle widths and size of parking spaces. I will say at this point that there was an amended plan to resolve the access parking arrangements and the traffic engineers indicated the amended plan is acceptable. 15The size of the boarding rooms was also raised. Council contend that there are certain boarding house rooms that are more than the 25 sq m, which is contrary to the State Environmental Planning Policy. 16The contentions of public interest and an undesirable precedent were also raised. On the contention of insufficient information and no acoustic report, I say at this point that the applicant produced an acoustic report very late, just prior to the hearing commencing and as such respondent was given the opportunity to respond. 17The Court in its consideration of the application has given regard to the issues raised. As I stated, the amended plans did go some way to satisfying council's concerns. However, the remaining contentions as submitted on behalf of the council are that units 10 through to 13, that is the upper units in the middle portion of the development, should be deleted and this would resolve for the council the overshadowing issues for the property at Nos 10 to 14, the aural and visual privacy impacts in terms of the property to the north at number 14. 18To further describe the context, the subject site has three to four storey residential flat buildings on either side of it with the majority of associated parking at grade with access from both The Avenue and rear laneway off Highway Avenue. 19The subject site is some 672 sq m and it has a slight fall to the rear of some 2 m. The planning framework on which the Court must consider the development application is State Environmental Planning Policy for Affordable Rental Housing . I note that there has been an amendment to this State policy as of May this year with a savings provisions in the recently gazetted amendments, such that the development application is to be considered as if the policy had not been made, except for there is a requirement that character is one issue that should be looked at retrospectively. 20The wording in terms of the savings provision is a little unclear. Nonetheless, as a cautionary measure I have considered that the character of the area in terms of the amended SEPP should be taken into consideration. That is, the character of the area under the amended SEPP in clause 30A is: A consent authority must not grant 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. 21I also consider that in terms of an assessment under s 79C of the Environmental Planning and Assessment Act 1979, character of the area is something that I would have regard to as well. In terms of the other gazetted amendments to the SEPP the character provision is the essential requirement that I must address. 22The SEPP also contains a number of standards for boarding houses. Including: that no boarding room will have a gross floor area, excluding any area used for the purposes of private kitchen or bathroom facilities of more than 25 sq m; no boarding room will be occupied by more than two adult lodgers; that adequate bathroom and kitchen facilities will be available for each lodger; and if the boarding house has the capacity to accommodate twenty or more lodgers then an on-site unit will be provided for a boarding house manager. The proposal provides for eighteen boarding rooms and one on-site manager's accommodation. 23The other provision is that, the boarding house is on land within a zone where residential flat buildings are permissible then at least one parking space will be provided and for a motorcycle space for every five boarding rooms. In this regard, the proposed development satisfies the State Policy for parking, that is, the basement parking and also the provision of cycle parking within the development. 24The urban designers agreed that the proposed development, the form and scale of the building, is an appropriate response to the streetscape of The Avenue, given the height and width of the street facade and the roof form, which is similar to its neighbours. They also agree the proposed development is acceptable in its presentation to the laneway and they recommend the planter on the southern boundary of the wall should slope or step down from the building to the laneway. 25On density the urban designers also agree the portions of the building housing the eastern most and western most units are acceptable in terms of density, the scale being comparable to that of their immediate neighbours. 26There were a number of areas of disagreement. Mr Williams is of the opinion that the central portion is out of scale in its context and of its width does not provide for the usual 6 m setback of habitable rooms in a four-storey building. The impacts of the proposed central portion he considered to be unacceptable. 27Mr Baker on the other hand considered that the central portion is acceptable and that the ameliorative measures are ones that address rule of thumb separation as required by the Urban Design SEPP. Here, I note that the acoustic engineer provided further evidence to the Court following the urban designer's giving oral evidence. 28The experts agree that the heights of those portions of the building housing the eastern most and western most units are comparable to the neighbours and therefore acceptable. It was acknowledged that the middle portion will cause overshadowing of the courtyard of the northern side to No 10. Mr Baker considers this is acceptable and, in a supplementary statement makes the point that a two-storey dwelling house on the subject site would create the same impact as the amended plan that the Court now has before it. 29Mr Williams is of the opinion that the central portion should be reduced in height and he did not accept that there should be the extent of overshadowing to No 10 as the proposal creates. 30For the issue of amenity to neighbours and setbacks, there has been further consideration to the previous external walkways that are now enclosed by glazing and there is also the same timber battening treatment to that portion of the upper level walkways. 31The Court must now consider the issue raised by the council that the proposed development requires a State Environment Planning Policy 1 objection to vary the provision of the 25 sq m, in that some of the units were inappropriately calculated in the area that should be included in the living area. There were detailed calculations provided to the proceedings. Mr Bas is of the opinion that the entry shown on the plans as part of the kitchen is incorrect and those units are over the 25 sq m by 2.5 sq m. He considers this area, should be included in the living area space as opposed to the kitchen area. 32As I stated, the detailed calculations of plans and I hear what the respondent has to say about inconsistency in the colouring and calculations of the typical street fronting upper units floor plan where the entrance kitchen is included. Where it becomes a long galley kitchen that adjoins the lounge room. In that instance, clearly the entrance way cannot be regarded as kitchen. Nonetheless, for those particular units this is not where the exceedence in the 25 sq m occurs. I note that this is an inconsistency in terms of the rationale for the calculations provided. However in terms of the units that do exceed the 25 sq m, in order to physically use the units where the kitchen is directly off the entryway, the width of the kitchen is such that it requires the entryway to be used when one is cooking or preparing food within the kitchen or using the kitchen for any purpose. Therefore, I think that it is fair and reasonable for those units, and these are the units that exceed the 25 sq m, if one has regard to Mr Bas' calculation, I am of the opinion that it is a commonsense interpretation of what is secondary legislation that the entranceway be part of the kitchen in these circumstances. It is a relatively small area and it must be utilised in order to be able to use the kitchen and therefore in my assessment is part of the kitchenette. In this regard, I take a commonsense approach to the interpretation of delegation legislation such as in an environmental planning instrument. It must be interpreted in accordance with general principles of statutory interpretation as advised in Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 and Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR. Where two meanings are possible I accept the legislator's intentions is that no boarding room will have a gross floor of no more than 25 sq m area excluding any (my emphasis) area used for the purposes of private kitchen or bathroom facilities. 33I am of the opinion that a common sense interpretation where one needs to in fact physically use the entry area for purposes associated with the kitchen should be included in the kitchen area. As such, I have decided that the State Environmental Planning Policy No 1 objection is not required, even though one was submitted for insurance during the proceedings in the event that I considered that it was necessary. 34The Court, now having dealt with what would have been a threshold question, if a SEPP 1 was required, can move to a general merits assessment of the application. I will say at this point, given that this is an ex-tempore judgment, I do not want to keep people suspended as to what the final outcome is. On my general merits assessment I am also satisfied that the proposed development is one that warrants approval. 35I say this, and it must be highlighted, that when this application first came to the Court it had significant deficiencies and leave was granted for an amended plan. I understand that the respondent's position is that the amended plan does not go far enough. Nonetheless, having considered the amended plan, and it is not just the fact that it is an improvement, I must focus on the amended plan in terms of my assessment and whether it is satisfactory. 36I also appreciate the fact that objectors and residents do not embrace change and the character of this area is one that is varied, however I am also satisfied that the proposed development will sit very comfortably in the streetscape. Not only in the streetscape of The Avenue, but I am also satisfied and agree with the urban designers that it is appropriate when viewed from Highway Avenue. 37Whilst the SEPP 65 rules of thumb may not strictly be complied with in terms of separation distances, I am satisfied that the ameliorative measures in terms of visual and aural privacy are satisfactorily resolved in the plans now before the Court in exhibit W. 38There was a great deal of discussion in terms of the acoustic requirements. The plans that originally came to the Court, according to the applicant's own acoustic engineer, would have required conditions that were too onerous to be practicable and therefore would not have been satisfactory. However, the acoustic soffits that have been insulated and the fixed glazing that is now proposed with only open louvres at the upper levels in my opinion, given the acoustic expert's advice, I am satisfied the proposal is satisfactory in terms of providing appropriate amenity to both the occupants and adjoining properties. 39I also recognise that for affordable housing, one must look at the aims of the State Policy for affordable housing. As I said, there is a need for me to have regard to the character of the area and the general fit of a proposed development within that area. It is clear from the SEPP that where there are inconsistencies between the zone and the instrument that covers the subject land that the SEPP prevails where there are inconsistencies. 40I have also considered it is only by virtue of the affordable rental housing SEPP that the proposed development can be submitted and assessed. The affordable housing SEPP provides certain criteria in terms of minimum and maximum room sizes and also contemplates a hierarchy of affordable housing. The aims of this policy are: (a)To provide a consistent planning regime for the provision of affordable rental housing. (b)To facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards. 41There is also an objective or an aim which is to facilitate the retention and mitigate the loss of existing affordable rental housing. Aim (b) is to facilitate the delivery of new affordable housing by providing incentives. 42In terms of the respondent's submission, I have also considered what people may expect or contemplate in the residential 2A zone. That is a much lower density. Nonetheless in terms of the height of the development, in terms of the solar access and the overshadowing impacts on No 10, I am satisfied the proposed development will not create overshadowing that would not be experienced by development in accordance with the zone. That is, a two storey building with a pitched roof developed on the subject site. I have had regard to the orientation of this site, that is an east west subdivision and for north facing areas, it is often difficult to retain or maintain the solar access that is currently existing. I find it of little assistance to look at what the existing overshadowing is of the existing development on the subject property as it is clearly an underdeveloped site, in terms of the area generally and has potential for redevelopment, whether it be for this affordable housing or some other higher density than what is shown on the site today. Even a dual occupancy development of two storeys, with a pitched roof, would have overshadowing impacts, due to it being on the northern boundary of No 10. 43The property at No 14, I am also satisfied that the 1.8 m setback to its southern boundary clearly will not create impacts in terms of overshadowing and the proposed and existing vegetation will ameliorate the impacts. Furthermore, the proposed walkways whilst they are within close proximity to the adjoining site; they have now been appropriately treated so as not to create unreasonable noise or visual intrusion. In particular, for the four balconies that have a southern orientation on the building at number 14 The Avenue. 44As I stated, people will experience change in the area and the role of the Court is to ensure that impacts are not unreasonable, even if it is under a State Policy that provides for relaxation of existing controls. The role of the Court is to assess the impacts in terms of whether they are reasonable or unreasonable. I am of the opinion that the impacts are satisfactory and will not create unreasonable impacts on adjoining properties or the streetscape or character of the area. 45In terms of the acoustic impacts, it was agreed by the experts it will be dependant largely on the behaviour of the residents within the building. Nonetheless, with the mitigation measures provided in terms of what may be expected in terms of the modelling of the acoustic engineers, I am satisfied the proposal is worthy of approval, in that, it is of a size that does require an on site manager to manage behaviour of the occupants. The on site manager's telephone number and contact is always to be available to adjoining residents, such that there would be an expectation that there would be rapid response to curtailing of activities that were considered to be excessive or unreasonable. In particular, noise generated by residents of the development during the later evening hours. The State Policy envisages that developments that are of a certain size must have an on-site manager and clearly that is appropriate in the circumstances of this case as well. A plan of management has been agreed to between the parties, which is a condition of consent. The plan of management is to be complied with and it may only be varied with the consent of council. 46Mr Williams expressed concern about the ground floor courtyards and the walkway that I have already addressed and the ameliorative measure that are now incorporated into the design. In terms of the ground floor courtyards, I am also of the opinion that these small courtyards will not create unreasonable impacts for adjoining properties. 47In terms of the character of the area, this is a matter that I also must focus my attention on. The character of the area, as I stated, is a pleasant, or relatively inner city area urban fabric with a wonderful mix of dwellings built over a long period. I am satisfied that the design of this proposal has regard to adjoining development, has regard to providing 'a fit', reduces the height of eaves and provides for articulation and for modulation and the use of materials means it will present as a more modern building within its context, nonetheless, it will fit comfortably in the streetscape, given the set back and given the proposed landscaping. 48From Highway Avenue, Mr Bas found the lack of setback and the basement parking would visually impact on Highway Avenue. However, I am satisfied that the presentation is appropriate to what is largely a service lane at the rear property. While the upper levels, clearly will be visible from Highway Avenue itself this would not warrant refusal and the building will be in harmony with adjoining flat buildings. In terms of the basement parking, I do not believe that the basement parking provision should offend those using or viewing the development from the laneway and would not be unexpected. Basement parking is an appropriate use of the fall of the land and will provide for an appropriate level of parking for the proposed development. 49I heard the concerns of the residents in terms of parking. In suburbs close to the city, parking is generally at a premium and I understand their concerns. At the same time I accept the evidence of the experts on parking and I must assess it under the relevant planning provisions, that is the Affordable Housing State Policy. 50The character of the area requires consideration noting it does not refer to 'future desired' character. Even if it did refer to future desired character, the existing development is development that will coexist with existing buildings. In terms of the Macquarie dictionary definition of "compatible development", I am satisfied the proposal will be harmonious and coexist harmoniously within this existing urban environment. 51The other matters raised by Mr Bas is that the proposed development offends the rhythm of the street because the existing development within the streetscape has generous side setbacks with landscaping. In this regard it can be seen from the aerial photograph that there are side setbacks, generally many of them generous, but many of them also much reduced setbacks that also contain driveways and as such do not provide for landscaping. The subject site has the advantage of rear vehicle access and therefore does not require access from The Avenue so that the majority of the frontage is generally proposed landscaping. Similarly, because of the basement parking, whilst there will be the protrusion at that point to the rear laneway, there is also the ability for some landscaping towards the rear of the property and this provides the communal area for the residents of the boarding house. 52I note that the proposal provides good amenity for the residents of the boarding house in terms of orientation, in terms of cross ventilation and solar access and a communal area. In terms of the disabled access there is a disabled toilet facility off the common area of the building and whilst this may not be ideal in terms of access for each and every disabled person, in terms of a development this would not warrant refusal of the development application. It is not a requirement that every unit in fact provide disabled facilities for visitors to each room. I am also satisfied that the proposal will provide appropriate access for disabled persons. 53The Court now turns to the conditions that have been handed up. There was a great deal of discussion about conditions and they are now agreed to, except condition 29 for the landscape plan. The condition requires a landscape plan prepared by a qualified landscape architect prior to the issue of the construction certificate. I do note that the plan may not satisfy the council's requirement of the 85 percent native species, however it would appear that the plan does satisfy the requirement for the height of one tree capable of reaching 4 m. There are a number of trees proposed on the subject site and a landscape maintenance strategy and details of the drainage and watering system in particular to the planter box on the southern side of the subject site is necessary. Given the fact that the council has standard conditions and there is no reason as to why 85 percent of the planting should not be native species, in accordance with the council's requirement and the condition will be slightly reworded so that the existing landscape plan shall be amended to provide for same. This would not be an onerous task for the applicant to provide as required in the council's condition, by way of an amendment to this landscape plan. 54Bearing in mind that in the assessment of the development application, I have had regard to the landscape plan and the fact that there is the provision of a number of trees in the landscape plan which has been part of my consideration, in particular, in terms of its fit with the streetscape and the character of the area. So, to call for a total new landscape plan would be inappropriate but an amended landscape plan is not considered to be too onerous. This amendment can also provide, in particular, the drainage for the planter as I stated and a maintenance strategy. It is a matter for the applicant how this is implemented; it does not necessarily mean an irrigation system. In particular, I note that with an onsite manager that may not be the most prudent way, but nonetheless that can be a matter for the applicant to provide the details of the maintenance to the council. 55Accordingly on the basis of my assessment above, the formal orders of the Court are: (1)The appeal in respect of number 12 The Avenue, Ashfield is upheld. (2)Leave is granted for amended plans and the applicant, under s 97B, is to pay the respondent's costs in the sum or quantum of $4,000. (3)The development application submitted to Ashfield Council and as amended and shown in exhibit W for a 19 room boarding house and manager's unit is granted consent, subject to the conditions in annexure A. (4)The exhibits are returned to the parties with the exception of 1, 9, D, P, W and X. J S Murrell Commissioner of the Court ANNEXURE A 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: 11 January 2012