Land and Environment Court New South Wales Medium Neutral Citation: Admark Investments Pty Ltd v Ashfield Council [2014] NSWLEC 1109 Hearing dates: 27 May, 2014 Decision date: 13 June 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 10.2013.292.1 for a new boarding house is refused. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: Boarding house development; impact on heritage significance of the North Summer Hill Conservation Area; bulk and scale; car parking. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Admark Investments Pty Ltd (Applicant) Ashfield Council (Respondent) Representation: Mr G. McKees Solicitor (Applicant) Mr P. Jackson Solicitor (Respondent) McKees Legal Solutions (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10081 of 2014 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No.10.2013.292.1 for a new boarding house and associated car parking and landscaping (the proposal) at 50A Sloane Street, Summer Hill (the site) by Ashfield Council (the Council). 2The appeal was subject to mandatory conciliation on 17 April 2014, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 29 April 2014, pursuant to s34(4) of the LEC Act. Issues 3The Council's contentions in the matter can be summarised as: * The proposal will have a detrimental impact on the heritage significance and character of the North Summer Hill Conservation Area; * The proposal is an overdevelopment of the site; * The proposal is of an inappropriate bulk and scale; * The proposal does not provide sufficient car parking for the future occupants of the boarding house; * The setbacks to all side boundaries are uncharacteristic of setbacks in the immediate vicinity; * The proposal does not comply with Council's Stormwater Management Policy; and * The Basix Certificate for the proposal is incorrectly characterised as a dwelling house. The site and its context 4The site is a battle-axe block on the north-western side of Sloane Street and to the rear of 50 Sloane Street, on the block bounded by Parramatta Road and Kensington Road. The site has an area of 319.9sqm, including its access handle, which is to the south-west of 50 Sloane Street. 5The site is the result of a boundary adjustment approved in 2011 of two pre-existing lots at 50 Sloane Street. 50 Sloane Street contains a Federation era cottage. The site is currently vacant. 652 Sloane Street is to the east of the site and also contains a Federation era cottage. 7There is a 3 storey residential flat building at 59-61 Kensington Street, to the rear of the site and a 3 storey residential flat building at 48 Sloane Street, to the south-west of the site. There is a three storey residential flat building at 50, 52 and 56 Sloane Street, to the north-east of the site. Background and the proposal 8The proposal is for a three storey boarding house containing 10 boarding rooms, including 1 accessible room and a common room. 9The proposal includes a hard stand for one car, within the access handle, adjacent to the Sloane Street boundary. Planning Framework 10The proposal is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Clause 30A of SEPP ARH, Character of Local Area, requires the following: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 11If there is an inconsistency between SEPP ARH and any other environmental planning instrument, the SEPP ARH prevails to the extent of the inconsistency, at cl 8. 12The site is within the R3 Medium Density Residential zone, pursuant to Ashfield Local Environment Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the R3 zone are as follows: To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 13Clause 4.3(1)(c) of LEP 2013 provides the following relevant objective for the height of buildings development standard: to provide a transition in built form and land use intensity between different areas having particular regard to the transition between heritage items and other buildings 14Clause 4.4(1)(c) and (e) of LEP 2013 provide the following relevant objectives for the floor space ratio (FSR) development standard: to minimise adverse environmental impacts on heritage conservation areas and heritage items, to maintain an appropriate visual relationship between new development and the existing character of areas that are not undergoing, and are not likely to undergo, a substantial transformation. 15The site is within the North Summer Hill Conservation Area (No. C47, Part 2, Schedule 5, LEP 2013) and in the vicinity of a heritage item at 52 Sloane Street (Item 618, Schedule 5, LEP 2013). The relevant objective for heritage conservation, at cl 5.10(1)(b) of LEP 2013 is as follows: to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views 16The consent authority must consider the effect of the proposed development of the heritage significance of the conservation area, before granting consent in respect of a heritage conservation area, at cl 5.10(4) of LEP 2013. 17The proposal is subject to the provisions of Ashfield Development Control Plan 2007 (DCP 2007). Part C18 Boarding Houses of DCP 2007, includes an objective for the building form and appearance, at cl 2.3 objective (a), for the proposal to maintain consistency with the character of locality. 18The controls for building form and appearance include, at cl 2.3 control (b), reference to Part C5 Multi Unit Housing in Residential Flat Zones. Part C5 requires, at cl 3.7, that a proposal must demonstrate that it will have the potential to contribute to Ashfield's housing heritage through it's fit with existing significant housing. Maintaining the heritage significance of conservation areas/items takes precedence when designing any development. Clause 3.5(d) requires building design, roof form, detailing and materials visible from public areas and adjoining properties are not in strong visual contrast with any positive and characteristic features of neighbouring properties. Public submissions 19Four resident objectors provided evidence. Their objections to the proposal can be summarised as: * The proposal will have an unacceptable impact on the heritage significance of the heritage item at 52 Sloane Street, the contributory dwelling at 50 Sloane Street and the NSHCA; * The site, as a battle-axe block, is unsuitable for a boarding house development and the scale of the proposal, given its proximity to surrounding development; * The proposal includes 11 kitchens which increases the risk of fire when compared to a dwelling with one kitchen and in the event of an emergency the site is inaccessible to emergency vehicles because the access handle is landscaped; * The proposal will result a loss of amenity for the occupiers of 50 Sloane Street because it will generate noise and the setback from the shared boundary is 2.27m, so the proposal will overlook their backyard and the landscaping will be insufficient to provide privacy or ameliorate the visual impact of a three storey building. There will be significant pedestrian traffic along the pathway in the access handle and the pathway will have to be lit at night; * The proposal will have an unacceptable impact on the amenity of the rear courtyards at 56 Sloane Street adjacent to the shared boundary; * The proposed waste volume is insufficient for the number of residents; * The proposal does not include an on-site manager and so there will not be anyone to ensure that the house-rules are obeyed, that the gardens are maintained and that the garbage is put out; * The proposal will have an unacceptable impact on the availability of on-street parking in the vicinity of the site. Expert evidence 20Expert evidence was provided by Mr Greg Patch (heritage) and Mr Warwick Gosling (planning) on behalf of the applicant and by Mr Robert Moore (heritage) and Mr Atalay Bas (planning) on behalf of the Council. Heritage 21According to Mr Patch, the proposal should be considered in its context, which includes single storey cottages as well as residential flat buildings. The NSHCA is characterised by a mix of development types and in Mr Patch's view, the inter-war and post war residential flat buildings dominate the character of the area and the proposal is consistent with the scale, bulk and type of the residential flat buildings on Sloane Street. In Mr Patch's opinion, the proposal is sufficiently setback from Sloane Street so as to meld with the background established by the residential flat buildings 22According to Mr Moore, the NSHCA is diverse in its scale, however, the buildings against which the proposal is juxtaposed are single storey detached houses in garden settings. In Mr Moore's view, the bulk and scale of the adjoining residential flat buildings does not render the bulk and scale of the proposal acceptable, because new development in the NSHCA should respect the significant attributes of the conservation area, including its predominate scale, bulk and footprint on the site. In Mr Moore's opinion, the proposal would result in an adverse impact on the setting of the contributory houses and heritage item in the vicinity of the site, as it would introduce an unsympathetic and dominating development into the NSHCA. Planning 23The planning experts agreed that SEPP ARH requires the proposal to provide two car spaces and the proposal is for one car space. Mr Gosling notes that the proposal is an accessible location, as it is within 800m of a railway station and 400m of a bus stop. 24In order to overcome the deficit regarding two car spacees, the applicant proposes one car space that can be used for a car share facility, which would be available to the residents of the boarding house. In Mr Bas' view, the lack of parking spaces is evidence of the overdevelopment of the proposal and the proposed car share facility is an inappropriate solution. Mr Bas considers that the carport dominates the street frontage of the access handle. Mr Gosling disagrees on the basis that other dwellings in the street have carports. 25The planning experts disagreed on the appropriateness of the bulk and scale of the development. According to Mr Gosling, the proposal complies with the height of buildings development standard and the proposal would be read in the context of the adjoining residential flat buildings. According to Mr Bas, the proposal would have a poor relationship with single storey dwelling houses fronting Sloane Street, as it forms a backdrop. 26The planning experts disagreed on the setbacks to shared boundaries. In Mr Gosling's view, the setbacks would be acceptable because there are no amenity impacts as a result of the setbacks (if the windows to rooms 5 and 8 are made highlight windows). In Mr Bas' view, the setbacks are insufficient to allow for adequate screen planting. Findings Heritage and character 27Scale is defined by the Macquarie Dictionary as 'a certain relative or proportionate size or extent'. It is not simply the height of the residential flat buildings adjacent to the site that should be considered in terms of the context of the site, it is fundamentally the figure-ground relationship of those residential flat buildings to open space that distinguishes their scale from the scale of the proposal. 28The footprint of the proposal occupies a significant proportion of its site. There is a front setback to the shared boundary of 50 Sloane Street of 2.27m, a rear setback of 2.275m, a side setback to the shared boundary of 48 Sloane Street of 1.57m and a side setback to the shared boundary of 56 Sloane Street of 5.385m, which incorporates the communal open space for the proposal (exh A, sheet 14). The proposal is further setback on the upper level 0.3 - 0.5m (exh A, sheet 9). These setbacks are uncharacteristic when compared to the corresponding setbacks of all of the existing buildings surrounding the site. The figure-ground relationship of the proposal coupled with the proposed 3 storey height demonstrates that the proposal is of a greater scale that the existing development surrounding the site, including the residential flat buildings. 29I accept and adopt Mr Moore's evidence that the proposal would introduce an unsympathetic and dominant development into the NSHCA. The proposal would be of a scale and bulk well in excess of the characteristic scale of development in the NSHCA and of a scale that is not warranted for a infill building within the NSHCA. The bulk and scale of the proposal would detract from the setting of the heritage item at 52 Sloane Street and the contributory buildings in the vicinity of the site. 30For these reasons, I am not satisfied that the proposal is compatible with the character of the local area, pursuant to cl 30A of SEPP ARH. The proposal fails to maintain consistency with the character of the locality (DCP 2007, Part C18, cl 2.3 objective (a)) and it would not contribute to Ashfield's housing heritage through its fit with existing significant housing (DCP 2007, Part C5, cl 3.7). 31Given the above findings, it is not necessary to deal with the Council's contentions regarding parking, stormwater and the Basix Certificate. Conclusion 32I am not satisfied that the proposal is compatible with the character of the local area, pursuant to cl 30A of SEPP ARH. The proposal is of a scale and bulk in excess of the characteristic and predominant scale of development in the NSHCA and of a scale that is not warranted for an infill building within the NSHCA. The scale and bulk of the proposal would diminish both the aesthetic values of the NSHCA and its collective significance and the impact is of such consequence that the application is refused. Orders 33The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. 10.2013.292.1 for a new boarding house and associated car parking and landscape works is refused. 3.The exhibits, other than exhibits 1 and A, are returned. Susan O'Neill 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: 13 June 2014