Land and Environment Court New South Wales Medium Neutral Citation: McKees Project Management Pty Ltd v Warringah Council [2012] NSWLEC 1213 Hearing dates: 23, 24 and 27 March 2012 Decision date: 07 August 2012 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. Development Application (DA2011/0400) for an affordable housing development comprising of eight residential flat buildings at 2-4 Riverhill Avenue and 751-757 Warringah Road, Forestville, is refused. 3. The exhibits, except Exhibits 2, 3 and F, may be returned. Catchwords: DEVELOPMENT APPLICATION: demolition of all existing structures and construction of eight residential flat buildings over a basement carpark - whether the design of the development is compatible with character of the local area Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 Warringah Local Environmental Plan 2000 Warringah Local Environmental Plan 2011 Cases Cited: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 The Benevolent Society v Waverley Council [2010] NSLEC 1082 Category: Principal judgment Parties: McKees Project Management Pty Ltd (Applicant) Warringah Council (Respondent) Representation: Counsel Mr P Clay, SC (Applicant) Ms S Duggan, SC (Respondent) Solicitors McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11177 of 2011 Judgment 1COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Joint Regional Planning Panel (JRPP) of a development application (DA2011/0400) for an affordable housing development comprising of eight residential flat buildings at 2-4 Riverhill Avenue and 751-757 Warringah Road, Forestville (site). 2The key contention is whether the design of the development is compatible with the character of local area. The site and surrounding area 3The site comprises six separate lots (Lots 25 and 26 DP 398815, Lot 4A DP358192 and Lots B, A and C DP 368072) with a total area of 6,343 sqm. It is irregular in shape with a frontage of 54.915 m to Warringah Road and 35.965 m to Riverhill Avenue. Each lot is developed with a detached dwelling and associated structures. The site falls from Riverhill Avenue to Warringah Road with a slope of about 7.8%. There is medium to dense vegetation, predominantly native trees and shrubs, on parts of the site. 4Development in the surrounding area is predominantly detached dwellings of varying periods and styles. Forestville Public School and a few multiunit housing developments are near the site. There are two residential flat buildings on Warringah Road about 500m to the east of the site, near Forestville Village. Background and the proposal 5The original application was lodged on 25 March 2011. A detailed history of the application is in the Amended Statement of Facts and Contentions. The original application was notified and over 700 objections were received. The application was subsequently amended and renotified and over 900 objections were received. The application was refused by the JRPP on 7 December 2011. 6Leave was granted during the hearing for amendments to the proposal. The application, as amended, seeks consent to demolish all existing on site structures and construct eight (8) residential flat buildings over a common split level basement car park which accommodates 85 parking spaces. A total of 72 residential dwellings (6 studio, 42 x 1 bedroom, and 24 x 2 bedroom units) are proposed. The development includes landscape works and a communal area with a swimming pool. Car access and egress to the site is off Warringah Road, which incorporates a 70 m deceleration lane. There is also egress to Riverhill Avenue. 36 dwellings (50% of the number of dwellings or 30% of the gross floor area) are to be affordable rental housing for a period of 10 years from the date of occupation. Planning framework 7At the time the application was lodged, the site was within the C1 Locality - Middle Harbour Suburbs under Warringah Local Environmental Plan 2000 (LEP 2000). The proposed development is for "housing" which is defined under LEP 2000 as "development involving the creation of one or more dwellings whether or not used as a group home". "Housing" is identified under LEP 2000 as a Category 1 development in this locality and is permissible with consent. 8The built form controls for the C1 Locality include a maximum housing density of one dwelling per 600 sqm, a building height of 7.2 m from natural ground level to the upper ceiling and 8.5 m to the top most part of the building, a minimum landscaped area of 40% of site area (50% for sites in excess of 3000 sqm), a front setback of 6.5 m, side boundary setback of 900 mm and a building envelope control. 9Warringah Local Environmental Plan 2011 (LEP 2011) was made on 9 December 2011. The site is zoned R2 Low Density Residential. Residential Flat Buildings are prohibited within the R2 zone. LEP 2011 was a draft when the development application was made. It includes a savings provision in cl 1.8A, which provides: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 10The proposal is for "Residential Flat Buildings" and is therefore permissible with development consent under the version of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) in force at the time the application was made. Division 1 of Part 2 applies to infill affordable housing. Clause 10(1) provides: 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. 11The parties agree that the site is within an "equivalent zone" under LEP 2000 for the purpose of cl 10(1). The basis for this conclusion is not apparent from the evidence before the Court. However, it was not raised as an issues with the parties and is not a matter which I have addressed in this Judgment. 12Clause 11 of SEPP ARH provides: 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, (b) development for the purposes of residential flat buildings where at least 20 per cent of the dwellings in the building will be used for affordable housing, but only if: (i) residential flat buildings are permissible on the land otherwise than because of this Policy, and (ii) the land 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. 13The parties disagree on whether cl 11(a) or cl 11(b) applies to the development, which is discussed later in this Judgment. 14On 20 May 11, SEPP ARH was amended by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011(amending SEPP). 15The amending SEPP includes a savings 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 commencement, the application may be determined as if the 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. (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. 16The parties agree that the use of the word "may" in cl 54A(2) indicates that the "power" to determine an "existing application" as if the amending SEPP had not been made may be exercised with discretion (s 9 of the Interpretations Act 1987). Mr Clay SC, for the applicant, submits that this discretion would not extend to the prohibition of a previously permissible development. Whereas, Ms Duggan SC, for the council, submits that the discretion is unconfined. 17Clause 10(1) of the Amending SEPP relevantly provides: 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 ...... 18The proposal would remain permissible under the amending SEPP. Residential flat buildings are not permitted in the R2 Low Density Residential zone under LEP 2011. Consequently, the development would not be permissible under the amending SEPP, if LEP 2011 were to also apply. 19The parties agree that it is appropriate to determine the application as if the amending SEPP had not been made. Ms Duggan SC submits that the prohibition in LEP 2011 and therefore under the amending SEPP, are relevant considerations but that the key and mandatory consideration is under cl 54A(3) of whether the design of the development is compatible with the character of local area. 20State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the Residential Flat Design Code (RFDC) (cl 30(2)(c)). Clause 16 of SEPP ARH provides that SEPP 65 continues to apply to the development. Proper planning approach 21Mr Clay SC submits that the application should be determined as if the amending SEPP had not been made subject to the consideration under cl 54A(3). He submits that clause 11(a) of SEPP ARH applies to the development as it is for the purpose of a residential flat building where at least 50% of the dwellings will be used for affordable housing, the building height does not exceed 8.5 m and residential flat buildings are not permissible on the land under LEP 2011. Mr Clay SC submits the application is made under the provisions of SEPP ARH, not under a local environmental plan. Residential flat buildings "are not permissible" under LEP 2011, which now applies to the land and the savings provision in LEP 2011 is not relevant for the purposes of cl 11(a)(ii), which refers to permissibility of the land, in the present tense. 22Consequently, in Mr Clay's submission, cl 14(1) of SEPP ARH applies, as the application is for development referred to in cl 11(a). Clause 14(1) provides standards that cannot be used to refuse development consent, including density and scale, site area, landscaped area, deep soil zones and solar access. Notably, the development proposes a floor space ratio (FSR) of 0.72:1 and would therefore meet the non-discretionary standard of 0.75:1 in cl 14(1). 23Ms Duggan SC referred to the definition of "development application", s76A and s78A of the EPA Act and submits that there is no requirement to elect which planning instrument an application is made under. Section 79C(1)(a)(i) of the EPA Act requires consideration of any environmental planning instrument of relevance to the application. Clause 8 of SEPP ARH does not give primacy to the policy, but rather, if there is an inconsistency between it and any other environmental planning instrument, SEPP ARH prevails to the extent of the inconsistency. 24In Ms Duggan's SC submission, the development application was made before the commencement of LEP 2011 and is in relation to land to which the Plan applies, therefore the savings provision in cl 1.8A of LEP 2011 mandates that the development application must be determined as if the LEP 2011 had not commenced. In her submission, the provisions of LEP 2000 therefore apply to the development application, to the extent that they are not inconsistent with SEPP ARH. Residential flat buildings are permissible under LEP 2000 and therefore cl 11(b) of SEPP ARH applies to the development. Consequently, in Ms Duggan's submission, cl 13 of SEPP ARH applies, as the application is for development referred to in cl 11(b). 25However, cl 54A(4) of the amending SEPP ARH provides that cl 13(2) of SEPP ARH does not apply to an "existing application" rather it must be determined by applying cl 13(2) and (3) in the amending SEPP ARH. Clause 13(2) of the amending SEPP ARH provides: (2) The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus: (a) if the existing maximum floor space ratio is 2.5:1 or less: (i) 0.5:1-if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or (ii) Y:1-if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent,where: AH is the percentage of the gross floor area of the development that is used for affordable housing. Y = AH ÷ 100 26Council submits that as there is no FSR control in LEP 2000, any FSR bonus should be added to a FSR of zero and that the maximum permissible FSR under cl 13(2) would therefore not exceed 0.5: 1. Whereas, the applicant submits that cl 14(1) applies and that the development cannot be refused on the basis of a FSR of less than 0.75:1. However, if cl 13(2) were to apply, the applicant submits that the 0.5:1 bonus should be added to a notional FSR (0.5:1 to 0.8:1) that reflects the form of existing development or that anticipated for the area. 27From the submissions and evidence, it is unclear whether cl 13(2) applies to the development application, as there is no maximum FSR control in LEP 2000, rather density is controlled by a site area of 600 sqm per dwelling. Nonetheless, I accept Ms Duggan's SC submissions that cl 11(b) applies to the development as residential flat buildings are permissible on the land under LEP 2000. Clause 14(1) of SEPP ARH therefore does not apply to the development, the FSR of 0.75:1 and the other controls are not standards that cannot be used to refuse consent and consequently do not "set the parameters for development on the site". 28In reaching this conclusion, I have accepted Ms Duggan's SC submission that the development application is not made under SEPP ARH, but that this policy and other relevant environmental planning instruments must be considered under s 79C(1)(a)(i) of the EPA Act. SEPP ARH prevails to the extent that there is an inconsistency between it and any other planning instrument. This does not override the savings provision in cl 1.8A of LEP 2011, which applies to the current application being a development application [that] has been made before the commencement of this Plan in relation to land to which this Plan applies. The application must be determined as if LEP 2011 has not commenced and therefore the provisions of LEP 2000 apply to the development. Residential flat buildings are permissible on the land under LEP 2000 and cl 11(b) of SEPP ARH applies. 29If I am wrong in this conclusion, both parties agree that cl 54A(3) of SEPP ARH applies to the development and the compatibility of the design of the development with the character of the local area is the key issue in dispute between the parties. However, they disagree on the application of cl 54A(3). 30Mr Clay SC submits that there is no requirement to be satisfied about compatibility with character, rather it is a matter to be taken into consideration in the balancing exercise that is undertaken in determining whether an application is appropriate. Mr Clay SC submits that the need to provide affordable housing is an important part of this balancing exercise, which is reinforced by the objectives of the EPA Act, the aims of SEPP ARH and LEP 2011. Mr Clay SC referred to The Benevolent Society v Waverley Council [2010] NSLEC 1082 where Moore SC gave weight to the "socially desirable objectives of the project in determining whether or not the Society's proposal should be permitted to exceed what would otherwise be the constraints on development". 31Ms Duggan SC submits that cl 54A(3) is a "gateway" consideration which requires that ....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. In her submission, it is not sufficient to only consider compatibility and then grant consent even if this is not achieved because of other social objectives. She submits that the social objectives of providing affordable housing are contained in the policy and achieved through measures such as expanded zoning permissibility, FSR bonuses, and non-discretionary development standards. The social benefit of affordable housing does not diminish the requirement for the design of a development to be compatible with the local area. 32I accept that the social objectives of providing affordable housing are achieved through the application of SEPP ARH including its aims and relevant controls, which include a consideration of compatibility. While it may be open to me to approve the application even if its design is not compatible with the local area, I do not accept that this would be appropriate or that a consideration of the aims and their social objectives or the other controls in SEPP ARH would require such an outcome. The evidence 33The Court heard expert evidence for the applicant from Mr R Chambers on planning issues and Mr G Baker on urban design issues. 34The council provided expert evidence from Ms D Laidlaw, on planning issues and Mr P Walter, on urban design issues. 35A number of local residents provided evidence on the site inspection and supported the contentions raised by the council. They raised additional concerns about the demand for parking and traffic likely to be generated by the development and resultant safety issues, particularly in relation to children using the nearby primary school. They also considered the site to be unsuitable for affordable housing due to the lack of public transport and access to employment. Is the proposal compatible with the character of the local area? 36Mr Clay SC submits that the question of "compatibility" under cl 54A(3) of SEPP ARH requires consideration of the following matters: •Determine the local area. •identify the desirable elements of the character of the local area. •identify how the design of the development responds to or reinforces those desirable elements. •understand the expectations created by the Council's controls relating to built form and character. •consider the expectations created by the SEPP and how that affects the question of compatibility. What is the "local area"? 37The experts agree that the "local area" generally includes the primary visual catchment of the site and that the wider context is also relevant. Ms Laidlaw and Mr Walter placed more emphasis on the immediate context of the block in which the site is located. Whereas Mr Chambers and Mr Baker considered the wider context to be important and identify the local area as being generally bounded by both sides of Warringah Road to the north and west, Starkey Street to the east and the line of Violet Avenue and Bushland Avenue to the south, which includes land within the C3 Locality - Forestville Village that has residential flat buildings and shops. What are the desirable elements of the character of the "local area"? 38The experts agree that the existing character of the "local area" is predominantly one and two storey detached dwellings with pitched roofs in a garden setting. It also includes multi unit dwelling developments predominantly of one and two storeys. 39The experts agree that existing single storey dwellings are being replaced with larger two storey dwellings. There is also agreement that there are no three storey flat roofed residential flat buildings in the block which contains the site. The wider local area includes shops and residential flat buildings in the C3 Locality - Forestville Village. 40Mr Baker and Mr Chambers consider the desirable elements of the existing character include front setbacks containing gardens and buildings dispersed amongst landscaped settings. 41Ms Laidlaw and Mr Walter agree that buildings in landscaped settings are a desirable element of the areas character. They also refer to details of the built form, such as materials, roofs and articulation of the building facades with windows, balconies and varying setbacks as being essential elements of the character. Does the design of the proposed development respond to or reinforce those desirable elements. 42The experts agree that it is useful in the assessment of compatibility of the design of the development with the character of the local area to have regard to the principles in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 where Roseth SC states: Planning principle: compatibility in the urban environment 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. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 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. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 43Mr Chambers and Mr Baker agree that the proposed development responds to the essential elements of the existing character of the "local area" of detached dwellings in landscaped settings. 44Mr Chambers considers the physical impacts of the proposal such as overlooking and overshadowing are acceptable. The proposal is visually compatible with its context because it is disaggregated into eight separate buildings with compliant height, landscaped setbacks, modest wall lengths to boundaries, low site coverage and retention of significant trees. 45Mr Baker agreed that there are no adverse physical impacts on neighbours. He acknowledged that the architectural appearance of the proposal differs from the neighbouring brick dwellings with pitched roofs. However, it is compatible with its context due to the separation between buildings, their relatively modest scale and the retention of existing and proposed landscaping on the site. 46Ms Laidlaw and Mr Walter consider that the proposal will have some adverse physical impacts. In particular, although the apartments are orientated north-south, there will be oblique overlooking from the upper levels into adjoining properties and within the development. They accept that this can be dealt with by screening. 47Ms Laidlaw and Mr Walter do not agree that the proposal is visually compatible or that it adequately responds to the essential elements of the existing character. Their key concern is the three storey, flat roof, box framed form of the buildings, which is uncharacteristic of the area. The extent of flat unarticulated walls which face the adjoining dwelling to the west, the repetition of the buildings and lack of details are also uncharacteristic of the local area. 48In particular, Ms Laidlaw and Mr Walter raised concerns about the design of the two buildings on the Warringah Road frontage (Buildings A and B). In their opinion, these buildings are of a bulk and form which is uncharacteristic and creates a different scale relationship to the other dwellings and multi unit developments in the street. The front setback of Building A partly does not comply with the minimum requirement in LEP 2000 and is forward of the adjoining dwelling to the north. They do not accept that landscaping can be relied upon to screen these buildings. Particularly, as the driveway to the basement between Buildings A and B provides clear views of these buildings and of Building C into the site. 49Similarly, Ms Laidlaw and Mr Walter consider that the setback of Buildings G1 and G2 from Riverhill Avenue is not adequate. Although they accept that with the amendments to the roof form and façade treatment, the appearance of these buildings is compatible in the streetscape. Controls relating to built form and character in LEP 2000 50The experts agree that it is useful to have regard to the C1 Locality Statement in LEP 2000 in relation to "desired future character". The Locality Statement provides: The Middle Harbour Suburbs locality will remain characterised by detached-style housing in landscaped settings interspersed by a range of complementary and compatible uses.......... The retention of existing landscaping is encouraged, where practical. Future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks. Unless exemptions are made to the density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality. The relationship of the locality to the surrounding bushland will be reinforced by protecting and enhancing the spread of indigenous tree canopy and preserving the natural landscape, including rock outcrops, remnant bushland and natural watercourses. The use of materials that blend with the colours and textures of the natural landscape will be encouraged. ............ The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control listed in clause 39. Future development of the environmentally sensitive land shown cross-hatched on the map will be limited to one dwelling per allotment. Such dwelling will be constructed having regard to the constraints, potential instability, visual sensitivity and impact on the water quality of Middle Harbour. 51The experts agree that the area is undergoing transition to the extent that existing, generally small/modest, mainly single storey dwellings are being replaced by larger, mainly two storey dwellings which have a greater scale and tend to be more prominent in the landscape. Despite this change in dwelling scale, Ms Laidlaw and Mr Walter consider that the Desired Future Character sought by LEP 2000 is one which seeks to maintain the existing character. In their opinion, the design of the proposal is not compatible with this existing character which is maintained through the built form controls in LEP 2000. 52Ms Laidlaw and Mr Walter considered that there is a degree of non compliance with controls in LEP 2000, such as landscape, building envelope and front setback. However, they considered that these were of lesser concern than the overall bulk and form of the development. Their principal concern related to the height and form of the proposal. While the proposal generally complies with the 8.5 m height limit in LEP 2000, it does not comply with the 7.2 ceiling height. They acknowledge that LEP 2000 does not include a control on the number of storeys but consider that the controls for ceiling height, overall height and building envelope have the effect of limiting development to a two storey form with a pitched roof (which may have accommodation). Ms Laidlaw also notes that while the proposal generally complies with the height limit of 8.5 m under the definition in LEP 2000, the overall height is greater through the excavation of the existing/natural ground level. Ms Laidlaw and Mr Walter consider the three storey box form to result in buildings which are of a bulk and scale that is not compatible with the character of the local area. 53Mr Chambers and Mr Baker consider that the proposal is consistent with the desired future character and generally meets the built form controls in LEP 2000. The proposal exceeds the side setback controls for dwellings, and the front setbacks on Riverhill Avenue and Warringah Road provide tree planting and landscaping consistent with the character of the area. They consider that the wall length of the buildings that face the rear and side boundaries are not dissimilar to those of the newer dwellings. 54Although the landscaping is below the requirement of 50% site area for larger sites under LEP 2000, it exceeds the landscaped area requirements under SEPP ARH (30%) and is consistent with the requirement for dwellings under LEP 2000 (40%). The buildings are in landscaped setting and significant trees are retained. 55The overall height generally does not exceed 8.5 m and any non compliances with this and the building envelop control are not significant and do not result in adverse impacts. Mr Chambers and Mr Baker consider that even though the proposal is three storeys, rather than two with a pitched roof, it does not result in a design that is incompatible with the character of the surrounding area. Under the density controls, the site could be subdivided to provide ten dwellings which would have a similar built form and impacts to the buildings proposed. Controls relating to built form and character in SEPP ARH 56The proposal complies with the controls in cl 14 (1) of SEPP ARH. However, for the reasons discussed earlier in this Judgment, these controls do not apply, in their terms, to the development. Even if they provide a guide for the form of development envisaged under SEPP ARH, compliance with these controls would not automatically mean that the design of the development is compatible with the character of the local area. 57In accordance with cl 16 of SEPP ARH, SEPP 65 applies to the proposed residential flat building. The experts held different opinions as to whether the proposal met the principles in SEPP 65 in relation to Context (clause 9), Scale (clause 10), Built form (clause 11) density (clause 12) and aesthetics (clause 18). The reasons for the disagreement are the same as those discussed above. In relation to Density, both Mr Chambers and Mr Baker rely on their understanding that the proposal complies with the FSR control in cl 14(1) of SEPP ARH which would permit a higher density for affordable housing projects than for other types of residential development. Findings 58The experts agree that the local area is the immediate visual catchment and that the wider catchment is also relevant. The key disagreement is the weight to be given to the residential flat buildings in the C3 Locality -Forestville Village and to non-residential uses such as shops. While these uses form part of the wider area, I accept that they are not the essential elements that the design of the development should respond to. 59The predominant character of the local area and its essential elements are one to two storey detached housing in landscaped settings. The housing is not homogeneous, and newer dwellings are replacing older dwellings. Although there is a variety of design, there is a similarity in the materials such as brick and weatherboard with pitched tile roofs. There is also a degree of variation in the dwellings with their elevations being broken up with different setbacks, windows and elements such as balconies and eaves. The multi unit developments in the local area adopt a similar typology, being generally one and two storeys with pitched roofs, although, in some cases their landscaped settings are reduced. 60The Desired Future Character for the area seeks to maintain the existing character of "detached style housing in landscaped settings....future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality." 61The consideration in cl 54A(3) does not require the design of a development to be the same as that in the local area. SEPP ARH is a State wide planning policy which clearly allows for a form of development that may not necessarily reflect the exact form of existing development or of development that is anticipated for the area. However, it does require the design of the development to be compatible with the local area. 62The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings can exist together in harmony without having the same density, scale or appearance" are importance considerations in assessing the character of the local area. 63Project Venture states [at 26] that: 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".... 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. 64The experts generally agree that the disaggregation of the development into eight separate buildings within landscape settings is a positive feature of the development. However, they disagree on the built form and its relationship to open space. 65Mr Chambers and Mr Baker placed some reliance on the similar overall height of the proposed development with other residential buildings and with the overall height control in LEP 2000. However, this ignores the ceiling control of 7.2 m and the existing form of development that is predominantly two storeys with a pitched roof. The bulk created by the additional wall height of a three storey, flat roofed building is significantly greater and of a different character to a two storey flat roofed building. Also, the overall height ignores the excavation of the proposed development and the consequent additional accommodation, which is below natural ground and not included in the calculation of the 8.5 m height but which adds to the wall height and bulk of the building. 66The footprints of the buildings range from 160 sqm to about 410 sqm. While there are examples of dwellings with large footprints in the local area, there are no examples where these footprints extend in the same vertical plane for three storeys. 67The wall lengths which face the side boundaries are generally 14.2 m, other than Buildings G1 and 2 (12.6m) and Building B (25.4m). These wall lengths are generally less or not dissimilar to recent dwellings. However, the side walls (other than Buildings C and D) are in the same plane with little articulation or windows. While this provides privacy to the adjoining dwellings it does not reflect essential elements of the character of the built form in the area, where the facades of dwellings are broken up into different planes with features such as balconies, eaves and windows. 68There was also general agreement that the open space and landscaping are a positive feature of the development, particularly the retention of the existing canopy trees in the area of communal open space and along Warringah Road. However, the experts disagree on whether the open space and its relationship to the built form reflect the essential elements of the area. 69The setbacks from the western side boundary of Buildings C and D are 5 m (with the top floor setback 7 m) and Building A is 3 m, which exceeds the side setback of existing dwellings in the area and the 900 mm control in LEP 2000. The basement carpark is setback about 2 m from the western boundary. These setbacks provide a degree of separation and opportunities for landscaping along the boundary. However, while the buildings are along the side boundary of the site they relate to the rear boundaries and the primary open space of the adjoining properties. 70The overall height and bulk of the buildings and their relationship to adjoining properties clearly require more than the minimum 900 mm setback which is adequate for the side a house which faces the side of an adjoining house. The RFDC suggests a greater setback for residential flat buildings than that required for housing under LEP 2000. While the setbacks provided along the side boundaries exceed the requirements under LEP 2000 and are acceptable for the individual buildings, the number of buildings able to be viewed from the rear gardens of the adjoining properties and the consistent architectural style of the development is uncharacteristic of the local area. 71The form of residential development that typifies the local area largely gains its individuality from different building material, designs and building form. The proposed development, with its consistent design and materials, would be clearly perceived as a single development which is larger than any other form of development in the local area, notwithstanding that it comprises separate buildings within landscaped settings 72The setback of Building B to Warringah Road retains the existing canopy trees, reduces the impact of the bulk of this building and is similar to that of the dwelling to the east. However, the front setback of Building A is forward of the dwelling to the west and encroaches on the minimum front setback control in LEP 2000. Warringah Road is a major arterial road with non residential development in proximity to the site. However, this does not justify the form of development proposed on Warringah Road nor is it acceptable to rely on landscaping to screen the development. Building A and Building B do not respond to the essential elements of the other dwellings and multi unit housing along Warringah Road. The three storey, flat roofed form and the blank side facades are uncharacteristic of this part of Warringah Road. 73Pursuant to cl 54A(3), I find that the design of the proposed development, particularly the overall bulk that results from the height and footprint of the larger buildings, is not compatible with the character of the "local area" and the degree of incompatibility is such that the development application should be refused. Other issues 74The other issues in contention between the parties including the amenity and privacy of some units which are below natural ground level. Although a negative feature of the development this would not of itself warrant refusal of the application. The additional issues raised by the objectors were not supported by expert evidence and would also not be a reason to refuse the application. Orders 75The orders of the Court are: 1. The appeal is dismissed. 2. Development Application (DA2011/0400) for an affordable housing development comprising of eight residential flat buildings at 2-4 Riverhill Avenue and 751-757 Warringah Road, Forestville is refused. 3. The exhibits, except Exhibits 2, 3 and F, may be returned. ___________________________ Annelise Tuor 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: 07 August 2012