Land and Environment Court New South Wales Medium Neutral Citation: Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 Hearing dates: 28 July 2014 Decision date: 30 July 2014 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The appeal is dismissed. (2)Development Application No. DA/674/2012 for demolition of existing structures, removal of trees and construction of a boarding house at 9 Evans Road, Telopea is determined by the refusal of development consent; and (3)The exhibits, other than Exhibits A, B, J and 2 are returned. Catchwords: PLANNING PRINCIPLES: the planning principle in Project Venture Developments v Pittwater Council re-endorsed by the Commissioners of the Court Legislation Cited: Parramatta Development Control Plan 2011 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy 65 - Design Quality of Residential Flat Development Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Project Venture Developments v Pittwater Council [2005] NSWLEC 191; (2005) 141 LGERA 80 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; (2004) 136 LGERA 254 Category: Principal judgment Parties: Revelop Projects Pty Limited (Applicant) Parramatta City Council (Respondent) Representation: Mr M Staunton, barrister (Applicant) Mr A Seton, solicitor (Respondent) Thomsons Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 10025 of 2014 Judgment 1SENIOR COMMISSIONER: Telopea is a suburb that is currently at the beginning of a characterisation change envisaged by the planning controls for the area. The transition that is anticipated is one that will, in effect, dilute the current level of public social housing on the land and also will increase the intensity of development so that a large area of what is currently generally single storey residential premises will be developed for higher densities of varying heights (ranging in size up to buildings of 20 metres). 2The present proceedings concern an application for approval to construct a boarding house described by the applicant's town planner, Mr Shanahan, as a "new generation boarding house" on the corner of Shortland Street and Evans Road at Telopea. The site is identified as part of the area to undergo renewal by the Parramatta Local Environmental Plan 2011 (the LEP), a plan that has been prepared under the standard instrument template regime. 3On 13 November 2012, the applicant lodged Development Application 674 of 2012 seeking consent for the demolition of the existing dwelling on the site, removal of vegetation on it, and construction of a boarding house above basement car parking. Parramatta City Council (the Council) subsequently assessed the development application and determined it by refusal. The basis for the refusal has been set out in the notice of determination and led to the proceedings that are currently before the Court. 4In these proceedings, the Council defends its refusal of the application and raises a number of matters as warranting refusal. They are set out in the Statement of Facts and Contentions (Exhibit 2) from p 12. They are under the following headings: 1. Character of the area. 2. Impact on amenity of adjoining properties in the neighbourhood. 3. Internal amenity under State Environmental Planning Policy 65. 4. Internal amenity under the Parramatta Development Control Plan 2011. 5. Building setbacks. 6. Traffic and parking, and the social impact of the proposal. 5It is clear to me that, in effect, the Council's reasons for proposing that I should refuse the development fall into two quite distinct strands. The first - based on the character of the local area and what are said to be the social impacts of the proposed development - essentially is saying to me not only that at this time, a boarding house on this site is inappropriate, but almost by necessary implication, says to me that at this time, in the planning and social context of Telopea, no new boarding house should be permitted within the precinct. 6It is quite clear, in my view, that it is not appropriate for me to determine such a proposition in that very broad sense. It is, however, necessary for me to determine the proposition in the context solely of the present proposed development on the identified corner site. 7The second strand of that which is put to me by the Council is that there are deficiencies in the design of the proposal that warrant refusal. In effect, some of those deficiencies in design were addressed during the course of the hearing in a fashion that satisfies me that they are capable of being resolved - either by requiring minor amendments to the plans or by imposition of conditions of consent, if consent were to be granted. 8Matters such as the dimensions of the toilet access in the proposed communal space on the ground floor, access to the external private open space, design of the lift and the like are all matters that are capable of being resolved either by minor redrawing of the plans or by conditions of consent and I do not propose to refer to those matters further. 9The proposal falls within the scope of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Policy) and is consistent with the aims of the Policy contained in cl 3 of it. It is unnecessary for me to set those out in detail. 10The Policy, in cl 29, sets out a number of matters that are not to be used as a basis for refusal of development consent. In the context of the application as it is now before me, two of those relate to the proposed floor space ratio and the height of the building. The proposed development is now compliant and there is no basis, on those provisions, for me to question it further. 11The height of buildings map set out in the LEP makes it clear that, for this precinct, a range of heights are anticipated as set out on sheet 14 of the Height of Buildings Map that forms part of the LEP. The site is identified within an area denominated as N2 and shaded on the map. It shows that there is to be a maximum permissible height, in that area, of 14 metres and that is satisfied by the proposal. 12I note, at this time, that immediately to the northeast - at 11 and 13 Evans Road - the Council has approved a new residential flat building (not a building that seeks to take advantage of the Policy) that straddles the height boundary between area L, which is limited to 11 metres, and N2 of 14 metres, and that the design of that approved building respects those height controls. 13Opposite the site, diagonally, is an area that is designated as 01, with 15 metre height control; and diagonally to the south-west is an area designed 02, which has a height control of 20 metres. The areas that are designated for 20 metres are the subject of specific provisions in the Telopea precinct elements of the Parramatta Development Control Plan 2011, (the Development Control Plan) to which I will return. 14The area is zoned for high density residential development by the LEP and that reflects an upzoning from the previous Local Environmental Plan provisions - those being the provisions that have, to date, informed the character of the area and, obviously, from past planning regimes, have led to an area that is primarily to the north and northeast of Shortland Street, one of low density residential development. Although the immediate past planning controls anticipated a transition to a higher density, the new local environmental plan increases that anticipated density. 15The provisions of the Policy also require, in cl 30, that if a boarding house has five or more boarding rooms, at least one communal living area will be provided. That provision is satisfied by the application. 16However, I note that that sets a minimum standard rather than a maximum, and as a consequence, the provisions of the Development Control Plan that propose a higher standard of communal living space is not in conflict with the provisions of the Policy and thus, does not trigger the facultative overriding provisions of the Policy that prevent more prescriptive provisions being imposed. 17The Policy clearly applies by cl 31 to the land and cl 30A of the Policy reads in the following terms: A consent authority must not consent to development to which this division applies unless it is taken into consideration whether the design of the development is compatible with the character of the area. 18Because of the number of storeys of the development, it also falls within the purview of State Environmental Planning Policy 65 - Design Quality of Residential Flat Development, and one of the relevant aims of that policy is to improve the design quality of residential flat development by achieving the urban planning policies for its regional and local context. I do not see that those objectives take me any further than noting principle 3 at cl 11 of the Policy about design and built form, which talks about contributing to the character of the streetscapes and the like, but goes no further than cl 30A of the Policy. 19The LEP applies. The aims of the LEP are set out in cl 1.2 and in 1.2(2)(b) and (h) are aims that have been prayed in aid by the Council in these proceedings, they being as follows: (b) to foster environmental, economic, social and physical wellbeing so that Parramatta develops as an integrated, balanced and sustainable city, ... (h) to enhance the amenity and characteristics of established residential areas. 20Neither of those objectives, it seems to me, add anything of particularity to the requirements of cl 30A of the Policy. The sight is zoned R4, high density residential. Boarding houses are permissible. 21It seems to me that, in some respects, the matters that are placed in contention with respect to the character of the local area fall into an amalgamated consideration - in that the desired future character of the area physically also reflects, to considerable extent, the desired future character of the area socially, a matter to which I will return on the general proposition as opposed to the design of the particular project. 22At the commencement of the proceedings, I attended the site with the legal representatives of the parties and those advising and instructing them. During the course of the site inspection, I heard evidence from a number of objectors given, as is the Court's practice, informally in the less confronting circumstances of the site rather than in the courtroom. Five such objectors were heard, they being Ms Phelan, Mr Berry, Ms Hudson, a further resident (one whose name was not provided to me subsequently) and Dr Geoff Lee MP, the Member for Parramatta in the Legislative Assembly of the Parliament of New South Wales. 23Virtually all of the matters that were raised by the objectors are also encompassed within the contentions that are pressed by the Council. There was one matter, however, that was raised by at least one of the objectors, to which I need make specific reference. I note in passing that that objection was not pressed by Dr Lee. 24That objection related to fears held by not only the objector who spoke, but he speaking on behalf of others in the area (others who had also raised this objection), that antisocial behaviour anticipated by potential residents of the boarding house in the context of what was said to be undesirable levels of antisocial or criminal behaviour by others in the area who resided in social housing. 25The statements that were made on that basis were, at their highest, anecdotal and without any formal evidence in support. It is appropriate that I note at this time that fears of such matters, no matter how honestly and genuinely held, are not relevant matters for my consideration unless there is some substantive, objective evidence that provides me with a basis to conclude that those fears are likely to be realised and by such future realisation, form part of matters requiring my weighing in the assessment process. There being no such evidence in these proceedings, I do not have any regard to those fears, no matter how honestly and genuinely held, their holding being accepted by me to fall within that description. 26I turn now to the question of other character of the area. It is clear that the Development Control Plan and the zoning map anticipate that the character of the area will change, and will change not only physically, but also socially. I will return to the social change in more detail. 27However, the Development Control Plan (prepared and subsequently adopted in support of the LEP) makes it clear that it is one that anticipates change and indeed, as I will return to later, in pt 4 of the Development Control Plan, specifically anticipates that further detailed master planning is required for elements of the Telopea precinct that do not include the site in these proceedings but are in the immediate vicinity of that site. 28The site is identified as being one for future increase in density compared to the single storey, single residence currently located on site. The discussion of the site in the council officer's assessment report (an assessment report that formed part of Exhibit 4) makes it clear that there will be a change over time. It is clear from the view of the site that that change has already commenced. It has commenced both in a realised form by the new residential flat building constructed in Mort Street within the 20 metre height limit, the area identified on the Height of Buildings Map and by the approval of the residential flat building next door immediately to the northeast, a residential flat building that complies with the heights but is substantially larger than the residences currently located on that site. 29I have earlier noted that Mr Shanahan gave expert planning evidence on behalf of the applicant in these proceedings. Dealing with the point of my consideration as required by cl 30A of the Policy, he draws attention in his Statement of Evidence (Exhibit C at p 6) to the planning principle published by my predecessor in Project Venture Developments v Pittwater Council [2005] NSWLEC 191; (2005) 141 LGERA 80. 30It is appropriate at this point to note, as I have publicly foreshadowed would occur in a paper given to the 2013 annual conference of the Environmental Planning Law Association, that the Commissioners of the Court were undertaking a review of past planning principles and considering whether there were any that required either revision or removal on the basis that their utility had expired. 31That review has been undertaken by Commissioners of the Court and we have considered the planning principle set out by my predecessor in Project Venture Developments. I should indicate that we have expressly concluded that that planning principle remains relevant and should be retained. 32In that context, my predecessor noted that where, in effect, the planning controls envisage a change of character for an area, compatibility with the desired future character is more appropriate than with the existing. The planning character for the area is that which is set out in the LEP. 33The design, in broad-context terms, without referring to the specific elements of the design to which I will return later, is consistent with the desired future character of the area. To the extent that there were matters raised by the contentions concerning the impact of the proposed development on neighbouring properties - impacts that I consider to be acceptable, in any event, but do not need to deal with in detail - I am satisfied that the proposed development, in the broad character sense as defined by cl 30A of the Policy, is compatible with the future character of the area and is - to use the double negative beloved of the legal profession - not incompatible with the present character of the area. It is not necessary in that regard to go through the detailed analysis of what is set out by Mr Shanahan in his Statement of Evidence in that regard. 34A similar broad position arises with respect to matters of social impact. It is clear that at the present time, Telopea has a socioeconomic demographic that is weighted to a greater extent than is the case throughout the Parramatta Local Government area toward, if not at, the lowest quartile of the socioeconomic spectrum. There is a significant element of public housing in the area and it is clear from the matters that are set out in Mr Shanahan's Statement of Evidence, as well as in the assessment officer's report, that that is likely to change over time. 35It is clear that it is likely to change over time in a positive fashion. 36The matters that are set out in pt 4 of the Development Control Plan envisage that the present approximately 450 public housing units that are located to the northwest of the Telopea Shopping Centre are intended to be redeveloped with the addition of over 1,000 or thereabouts new dwellings in addition to the replacement of the public housing stock. 37Those new dwellings are intended, as part of that master planning exercise, to be developed by the private sector. Some of them may be developed for affordable housing. Others will be placed on the private rental market, as is the position with respect to the proposed to be built and approved development immediately adjacent to the site. 38It is clear that the increased density envisaged as shown on the land zoning map sheet 14, attached to and forming part of the LEP, that the increased density in the R4 zone that is expected to occur in the vicinity of the site is an increase in density that is not expected to be met from within entirely the present broad socioeconomic disadvantaged elements of the Telopea community. 39As a consequence, that which is anticipated to change over time in the precinct will be an amelioration of the social disadvantage in the precinct. It was Mr Shanahan's evidence that the socioeconomic demographic likely to occupy the proposed development on the site was likely to be in the second quartile that is, of socioeconomic indicators as represented by income levels thus potentially including residents with an income of up to 110% of the median income. 40All of this leads me to the conclusion that the social impact of approving a boarding house on this site, it not being appropriate for me to consider it in any broader context, will not have an adverse social impact either at present or in the future on the character of the Telopea suburb and as a consequence, that contention, the final contention in the Council's contentions, is also unable to be established. 41That leads me to the conclusion that it is appropriate to contemplate the erection of a boarding house on the site. This then, having crossed that threshold, takes me to the two matters of detailed design that are, in effect, pressed by the Council as warranting refusal and which are unable to be satisfied by minor changes such as those I have already indicated relating to access to facilities and the dimensions of the lift and the like. 42The first of the matters arises from the contention that the development is not in compliance with the provisions of the Development Control Plan concerning setbacks from its street frontages. First, I should observe that the controls in this regard are contained in the Development Control Plan. They are controls that have been in effect for a comparatively short period of time but there is nothing put to me in these proceedings that in any sense there has been some failure to apply those controls by the Council in the sense that such failure to apply is discussed by the former Chief Judge of the Court in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; (2004) 136 LGERA 254 as being a basis for why the controls should be either ignored or set aside. 43Second, there is nothing to suggest that, in this regard, the reliance by Mr Staunton, counsel for the applicant, on the setback from Evans Road of the development at 11 to 13 Evans Road as approved assists in my consideration of the very specific matter that ended up being the foundational objection, at least as I understood it, pressed by the Council with respect to setbacks from street frontages. 44First, it is clear to me that the street frontage requirements for the proposal for the Shortland Street frontage, as set out in pt 4 of the Development Control Plan, make it clear that a setback of only 3 metres is required for that; that is the position that is set out in figure 4.1.11.1 on p 158 of the Development Control Plan. 45However, there are specific provisions that relate to the primary frontage (which is that to Evans Road) that warrant more detailed and critical consideration. First, the table that is set out on p 35 of the Development Control Plan in pt 3 sets out the setbacks that are required for primary and secondary frontages; it relevantly being that for residential flat buildings, the primary frontage setback is to be between 5 and 9 metres. 46Critically, as shown for example on DA02 revision M, the corner of the two streets on which the site is located has a chamfered property boundary and that the setback at the midpoint of that chamfer, that being, in my view, the appropriate transitional point to have regard for the purposes of assessing the appropriate setback from Evans Road, shows that there is a setback of considerably less than the minimum distance. 47It is acknowledged that, on the plan to which I have referred, the 5 metre setback that has been shown by the architect is a setback from a point outside the property's boundaries. The discrepancy is not a minor one. It also falls to be considered in the context of other provisions that are contained in the Development Control Plan concerning the respect that development on corners should show to that corner. 48I accept, in this context, that the development at 11 to 13 does not precisely comply with the 5 metre setback, although the noncompliance is comparatively minor being in the vicinity of 30 centimetres or so. However, the noncompliance on the corner is significantly greater than that and requires consideration in the context of what the Development Control Plan said is needed for corner development - that is set out in pt 3 of the Development Control Plan on pp 45 and 46 where, at P7, it is noted that buildings on corner sites are to be articulated to address each street frontage and are to define prominent corners. Two diagrams contained in figure 3.11 and 3.12 on p 45 provide examples of this. Those two diagrams, together with the control, require consideration in light of the design of the building shown in the photomontages that are provided. 49It is clear to me that the concept of defining a prominent corner in this context, and particularly in the context of the two diagrammatic depictions, does not mean having what might be described as a bold and assertive presentation to the corner, as is my assessment of an appropriate description of the design of this building. 50It is clear from the elevational depiction in figure 3.11 that the curvilinear and articulated presentation to the corner there shown is one that is a soft and not aggressive definition of the corner. The plan depiction in figure 3.12 makes it clear that the articulation envisaged by that is not one that is also an angular and aggressive presentation to the corner but one that involves an articulation in the plane across the corner. 51Neither of the figures are figures of buildings of the typology of that which is proposed in this application. I do not consider that that disqualifies in any way consideration of the broad concepts that are contained in those diagrams. It is clear to me that the present design is fundamentally and completely inconsistent with that provision of the Development Control Plan. 52It is appropriate at this point to note that, in his oral evidence, Mr Shanahan was taken to these diagrams and to the control which I have earlier noted at P7 and he indicated that he had not looked at this folio (folio 383 of Exhibit 4). As a consequence, I consider that, although he endeavoured to address it during the course of his oral evidence, I have less confidence in accepting his evidence on that point than if he had had a past measured consideration of the provision and had dealt with it in his written Statement of Evidence (the Statement of Evidence - Exhibit C). 53I am satisfied that the treatment to the corner is so out of character with that which was envisaged by the Development Control Plan as to warrant refusal of the development on that basis. 54I should indicate that I have considered in the context of the amber light approach, whether it would be appropriate to order removal of the units on that corner at each level of the building in order to have a design that in some fashion reflected figure 3.12 and I have concluded that that would constitute either a constructive refusal or would be such a major intervention with the proposed development as to be entirely inappropriate in the context of the limited discretion that is granted for the amber light approach. 55I now turn to the question of the communal living space. At the present time, there is a proposed communal lounge room of some 25 square metres proposed in the northwestern corner of the ground floor. That communal living space is one that will permit the accessing of a communal private open space area a little further to the northwest on the other side of an easement that runs through the property. At the present time, the access between those two communal spaces is unsatisfactory. That is a matter, as I earlier indicated, capable of being resolved and need not detain me further. 56The Policy requires a minimum of a single communal lounge room for a boarding house development. The Development Control Plan, in pt 5 dealing with boarding houses, requires, as the fifth point of operational controls P19, that there be a communal lounge room of one per floor for multi-storey boarding houses. That is not provided in the present development. 57P41 of the Development Control Plan, which was not the subject of detailed examination during the course of the hearing but was raised by matters pressed by objectors during the course of objections raised during the second notification provision, was that there was not a single communal living area per level and that it did not comply - that is, the totality of the area that was to be provided did not comply - with the formula that is set out in control P41 of 20 square metres in area, with a further 1.5 square metres per resident where resident numbers exceed 12 persons, as is the case here. 58As the second of those aspects, that is the inadequacy of floor area of the communal living room, was not the subject of submissions or evidence by Mr Shanahan, to the extent that it might be a matter of concern raised by the residents including discussion during the course of the onsite hearing, it is not appropriate that I use that point as a basis for drawing an adverse conclusion on this control against the application. 59I, therefore, set the area of the communal living space aside for this purpose. 60However, it is also fair to say that Mr Shanahan, in his evidence on this point, was at least as I understood him saying to me effectively that for a "new generation boarding house", which it is agreed, at least as I understood it, is the appropriate designation of these premises that have an appropriately designed and fitted out space, with generous glazing to adopt a description from his evidence and thus, given the height of the building at least from the first end upper levels where there is not to be a communal living room, expansive views over the Telopea Valley towards either the south or the southwest, that it is unnecessary in such a boarding house, both in general proposition and in specific terms, for there to be such a requirement. 61To the extent that Mr Shanahan might have been pressing by inference the proposition that such a general requirement in the development control plan is inappropriate, such a proposition is inconsistent with the guidance provided by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 and I do not venture into that area. 62It is, however, appropriate for me to consider whether, in the circumstances of this building, it is appropriate to set aside the requirement for a communal living room on each floor. The Council officer's assessment report concluded that it was not necessary to require this because of the design and amenity of the individual premises; that essentially is the proposition upon which Mr Shanahan relied. 63As I say, setting aside the question of the area, Mr Shanahan dealt with the question of the communal living lounge room absences on levels 2, 3 and 4 of the proposed development on p 11 of his Statement of Evidence. He did so in the following terms. 64However, in the course of his oral evidence, in addition to the use of the communal areas being unnecessary because of the amenity of the individual dwellings, Mr Shanahan did acknowledge that communal living rooms were valuable for providing interaction between residents and encouraging recognition of each other. It is clear to me that the value of communal living areas is not solely to provide some form of amenity refuge from what, in some other circumstances circumstances I accept that are absent from this proposed development would be a refuge from any inadequate or unattractive internal amenity of a room. 65However, I am not satisfied that a communal living space on the ground floor where there are, as I pointed out during the course of the hearing, accessible units on levels 2, 3 and 4 and a communal area of comparatively cramped dimensions on level 1, is appropriate in the circumstances of this case and not expressing any view on the general principle as to whether a living area on each floor is appropriate that it is not appropriate to dispense with that requirement in these proceedings. 66I also considered, consistent with the amber light approach, whether I could unilaterally designate areas from within the existing built form at levels 2, 3 and 4 that might be appropriate to be designated as communal areas on those levels. I came to the conclusion, as with the question of articulation to the corner, that it would be such a major interference with the proposed design if I were to do so, as to constitute a constructive refusal and/or would render the application in combination with any corner intervention so unlike that for which consent was sought as to be outside the scope of the present application. 67I have, therefore, concluded, in broad, that there is no amber light way that I can seek to ameliorate the deficiencies of the application in a fashion that would enable a development consent to be granted. 68In summary, I have determined that it is not inappropriate to permit a boarding house on this location at the present point of the social and planning cycle for the area. However, I have concluded that on two separate bases, it is not appropriate to approve this proposed development on this site. 69The consequence is that the orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. DA/674/2012 for demolition of existing structures, removal of trees and construction of a boarding house at 9 Evans Road, Telopea is determined by the refusal of development consent; and (3)The exhibits, other than Exhibits A, B, J and 2 are returned. Tim Moore Senior Commissioner 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: 21 August 2014