Land and Environment Court New South Wales Medium Neutral Citation: Battaglia v Strathfield Council [2014] NSWLEC 1174 Hearing dates: 26 August 2014 Decision date: 27 August 2014 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [34] Catchwords: DEVELOPMENT APPLICATION - Boarding house - Compatibility with character of area - Compliance with development standards Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Strathfield Local Environmental Plan 2012 Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 Category: Principal judgment Parties: Romina Battaglia (Applicant) Strathfield Council (Respondent) Representation: Mr P Clay SC (Applicant) Mr A Hudson, Wilshire Webb Staunton Beattie (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10301 of 2014 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application 2013/152 for the demolition of existing structures and construction of a two storey boarding house comprising nine studio apartments and one 1 bedroom unit above basement level car parking for three cars with associated landscaping and drainage works at 12 Hillcrest Avenue South Strathfield (the site). 2The site is on the eastern side of Hillcrest Avenue and there is currently erected a single storey dwelling with a detached garage. The surrounding development comprises detached single storey dwellings to the south, an Ausgrid electricity substation on the adjoining lot to the north, a townhouse development currently under construction to the north on the corner of the intersection of Hillcrest Avenue and Hill Street, and a school on the opposite side of Hillcrest Avenue which has a frontage to both Hillcrest Avenue and the Hume Highway. There is a large two storey townhouse development to the south west on the opposite side of Hillcrest Avenue. At the rear of the site, with frontage to Coronation Parade, are detached single storey dwellings. 3The applicant lodged the development application on 5 September 2013. The Council publicly notified the development application and 16 written objections and one petition with 20 signatures were received. The development application was amended, with amended plans provided to the Council in November 2013 and January 2014. The application was refused by the Council's Planning Committee on 18 February 2014, and the applicant appealed to the Court on 8 May 2014. Issues 4In its Statement of Facts and Contentions (exhibit 2) the Council raised 11 contentions: that the design of the proposed development was not compatible with the character of the local area (cl 30A of State Environmental Planning Policy (Affordable Rental Housing) (the AHSEPP)); the proposed development was not consistent with the design principles for residential flat development in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65)); the proposed development is an overdevelopment of the site in terms of residential density; the proposed development does not make adequate provision for stormwater drainage and is inconsistent with cl 4.5 of the Council's Storm Water Management Code; the proposed development is likely to have an unacceptable adverse impact on the amenity of residents of adjoining and neighbouring properties in terms of overshadowing, noise and privacy impacts; the proposed development is likely to increase traffic congestion in Hillcrest Avenue and the local area; insufficient motorcycle parking; proximity to the electricity substation; inadequate communal open space; that approval of the proposal would set an undesirable precedent for similar inappropriate development in the area; and that approval would not be in the public interest having regard to the number and nature of the submissions received. 5As a consequence of conferencing between the parties' planning experts the applicant amended the plans for the proposed development, and leave was granted at the commencement of the hearing to amend the application to rely on the amended plans, with costs to be paid under s 97B of the Act as agreed or assessed. The Council's position at the hearing was that those amendments resolved its contentions and that the Council did not oppose the granting of consent subject to the conditions agreed between the parties. Evidence 6The written submissions made to the Council in the course of its assessment of the development application are in evidence (exhibit 4, tab 6). Those submissions raised concerns as to parking and traffic, safety concerns regarding the proposed residents, compatibility with the streetscape and the area, loss of privacy, noise, inappropriateness of the placement of a boarding house near a school and families, inadequate landscaping, inappropriate design, and inconsistency with planning controls. 7The hearing commenced on site with a view of the subject site and the immediate locality. The applicant's representatives explained the proposed amendments to the plans in accordance with the agreed recommendations of the expert planners (discussed below). Evidence was given on site by two residents of Coronation Parade, including the property adjoining the site to the rear, and two residents of Hillcrest Avenue, who maintained their objections to the proposed development. Their evidence related to concerns for the proposal for stormwater drainage, impacts on the area as a whole including on the school and family housing from a boarding house, traffic congestion and parking, and impacts of a boarding house with up to 17 residents in a residential area. 8The applicant relied on expert traffic evidence from Mr Paul Corbett, engineer, who provided a Statement of Evidence dated 22 August 2014 (exhibit B). Mr Corbett's evidence was that the proposed development would more likely generate a total of two vehicles per hour both during the morning and afternoon peak periods, which would be a net increase on that generated by the existing dwelling of one vehicle per hour during both the morning and afternoon peak periods. In his opinion that net increase would have no quantifiable impact on the safety and efficiency of the existing road network including intersections in the vicinity of the site. In oral evidence given on site Mr Corbett stated that traffic generated by the school on the opposite side of the road had its peaks at different times to that to be expected of the proposed development, being in the morning when vehicles stop briefly to drop passengers, and 3.00-3.30pm in the afternoon when vehicles stop for longer to pick up. He had monitored 90 vehicles per hour between 7.30-9.00am, and based on Roads and Maritime Services guidelines Hillcrest Avenue has a capacity of 200 vehicles per hour. 9Expert planning evidence was provided on behalf of the applicant by Mr Stuart Harding and on behalf of the Council by Mr Jeff Mead. Mr Harding and Mr Mead met on 15 August 2014 and prepared a joint report (exhibit 5). In the course of their conferencing they agreed that the height of the proposed building should be reduced by 900mm to a level at or below the original floor plans, and on that basis the scale of the building would be satisfactory and reflective of development that could be expected in the zone. They agreed that an increase in the rear setback to 6m, which would be consistent with the Strathfield Consolidated Development Control Plan 2005 (the DCP), could be accommodated. They agreed that subject to a lowering of the building height and increased setback to the rear boundary the issues of overdevelopment and residential amenity were resolved; that as a consequence of the reduction in height SEPP 65 would not apply; that solar access to the property to the south at 14 Hillcrest Avenue would be improved and an acceptable amenity outcome would be achieved; and that the access to the communal open space at the rear of the site would be improved. Mr Harding and Mr Mead gave oral evidence. Planning controls 10The site is in the R2 Low Density Residential zone under the LEP. Development for the purpose of a "boarding house" is permissible with development consent. The objectives of the R2 zone, to which regard must be had under cl 2.3(2), are: · To provide for the housing needs of the community within a low density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas. 11Clause 4.3 provides that the maximum height for a building on the land is 9m. Clauses 4.4 and 4.4C provide that the maximum floor space ratio (FSR) for the site is 0.65:1. It was agreed between the planners that as a consequence of the amendments to the plans, the maximum height of the building is 8.34m, being the eastern element of the common room at the south eastern corner of the building. The planners agreed that the FSR now proposed is 0.6:1. 12Clause 6.4 requires that the consent authority be satisfied that essential services, including stormwater drainage or on-site conservation, are available or that adequate arrangements have been made to make them available. The detailed requirements are specified at Part C section 2.10 of the DCP and in the Council's Stormwater Management Code. Both require that stormwater drainage be connected to the Council's drainage system by gravity means, and state that the acquisition of an easement over any intervening downstream properties, at the developer's cost, will normally be required for sites that do not drain to the street. The agreed Conditions of Consent include a deferred commencement condition imposed under s 80(3) of the Act, providing that the development consent does not become operative until the applicant provides evidence that an easement has been registered over the adjoining property to the east, being 73 Coronation Parade. 13The AH SEPP applies. The aims of the AH SEPP include: (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, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, 14The site is within an "accessible area" as defined in cl 4 of the AH SEPP, being located within: (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 15Division 3 of the AH SEPP applies to boarding houses. Clause 27(2) states that Div 3 applies to land zoned R2 Low Density Residential if the land is within an "accessible area". 16Clause 29 provides standards that cannot be used to refuse development consent. Those standards are: 29 Standards that cannot be used to refuse consent (1) A consent authority must not refuse consent to development to which this Division applies on the grounds of density or scale if the density and scale of the buildings when expressed as a floor space ratio are not more than: (a) the existing maximum floor space ratio for any form of residential accommodation permitted on the land, or (b) if the development is on land within a zone in which no residential accommodation is permitted-the existing maximum floor space ratio for any form of development permitted on the land, or (c) if the development is on land within a zone in which residential flat buildings are permitted and 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-the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus: (i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less, or (ii) 20% of the existing maximum floor space ratio, if the existing maximum floor space ratio is greater than 2.5:1. (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) building height if the building height of all proposed buildings is not more than the maximum building height permitted under another environmental planning instrument for any building on the land, (b) landscaped area if the landscape treatment of the front setback area is compatible with the streetscape in which the building is located, (c) solar access where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter, (d) private open space if at least the following private open space areas are provided (other than the front setback area): (i) one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, (ii) if accommodation is provided on site for a boarding house manager-one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation, (e) parking if: (i) in the case of development in an accessible area-at least 0.2 parking spaces are provided for each boarding room, and (ii) in the case of development not in an accessible area-at least 0.4 parking spaces are provided for each boarding room, and (iii) in the case of any development-not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site, (f) accommodation size if each boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of at least: (i) 12 square metres in the case of a boarding room intended to be used by a single lodger, or (ii) 16 square metres in any other case. 17Clause 30 provides standards for boarding houses: 30 Standards for boarding houses (1) A consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following: (a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided, (b) 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 square metres, (c) no boarding room will be occupied by more than 2 adult lodgers, (d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger, (e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager, (f) (Repealed) (g) if the boarding house is on land zoned primarily for commercial purposes, no part of the ground floor of the boarding house that fronts a street will be used for residential purposes unless another environmental planning instrument permits such a use, (h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. 18Clause 30A requires consideration of the character of the local area: 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. 19Relevant provisions in the DCP include Part C section 2.2 Density, Bulk and Scale, including provisions for front, side and rear setbacks; section 2.5 Streetscape and Building Orientation, including a guideline that new development be compatible "with the predominant charter and architectural detail of existing residential development in the street"; section 2.9 Access and Parking; and section 2.10 Site Facilities and Water Management. 20It was common ground that following the amendments to the plans which reduce the height of the building and the height of the basement above ground at the rear of the building, the proposed development is not a "residential flat development" for the purposes of the application of SEPP 65. Consideration 21The Council's position is that the matters identified in its contentions have been addressed by the amendments to the plans or in the proposed conditions. 22Considering first, compliance with the numerical standards applicable to the proposed development under the AH SEPP and the Council's planning controls. The proposed development complies with the height and FSR requirements imposed by the LEP, and thus cl 29(1) and (2)(a). I accept the agreed evidence of the planners that it satisfies cl 29(2)(c) and (d). Clause 29(2)(e)(i) would require 2 car parking spaces; the proposed development following the amendment to the plans provides 5 car parking spaces. I accept the agreed evidence that units 1, 2 and 10 have a gross floor area of less than 16sqm, and under cl 29(2)(f) could not be occupied by more than one lodger; the parties have agreed on a condition (condition 9) limiting use of units 1, 2 and 10 to no more than one adult lodger; units 4, 5, 6,7, 8 and 9 to no more than two adult lodgers; and the manager's unit to no more than two persons. The total number of potential residents consistent with that condition is 17. The proposed development provides a communal living room at the rear of the ground floor and complies with cl 30(1)(a); the proposed development complies with cl 30(1)(b), (c) (as required by condition 9), and (d). The amended plans now provide for bicycle and motorcycle parking in compliance with cl 30(1)(h). Clause 2.9 of the DCP would require 10 spaces, however that provision is inconsistent with cl 29(2)(e) of the AH SEPP and does not apply to the proposed development: s 74C(5) of the Act. 23The proposed building is set back 6m from the front boundary which is less than the 9m specified at section 2.2 of the DCP. Point 2 notes: Notwithstanding requirement 1, developments may be setback less than 9 metres where the predominant setback in the street block is less than 9 metres or the setback would not conflict with the existing streetscape. 24The front setback for the proposed building is consistent with that of the neighbouring dwelling at 14 Hillcrest Avenue and with the substation on the adjoining northern property. I accept the agreed evidence of the planners that in that context, and with the provision of landscaping as proposed in the plans, that point 2 is satisfied and it is appropriate not to require compliance with the numerical provision. The proposed conditions include a deferred commencement condition requiring provision, within six months, of a detailed landscape plan to be approved by the Council. 25In considering the character of the area as required by cl 30A of the AH SEPP, and by section 2.5 of the DCP, I accept the agreed evidence of the planners that the site is located in an area in transition. While the existing dwelling on the site, and those along the eastern side of Hillcrest Avenue to the south, are single storey detached dwellings, there are two storey new dwellings under construction to the north at the intersection with Hill Street, and a new two storey dwelling under construction and the large two storey townhouse development on the opposite side of the street. The proposed development is similar in scale and nature to those newer developments and is consistent with the anticipated FSR for the zone of 0.65:1 for a block of its size. Applying the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, and considering whether the proposed development is "capable of existing together in harmony" with both existing development in the area and that contemplated under the LEP, I am satisfied that the proposed development is not inconsistent with the character of the area. 26The Council initially contended that the proposed development is an overdevelopment of the site in terms of residential density. I accept the agreed evidence of the planners that having regard to the FSR of the development as now proposed and its compliance with the rear setback requirements in the DCP, that it is appropriate in terms of residential density. 27The Council initially contended that the proposed development would have an adverse impact on the amenity of residents of adjoining and neighbouring properties in terms of overshadowing, noise, and privacy impacts. The planning experts agreed that the applicable control for overshadowing is section 2.4.2 of the DCP which requires that solar access to the windows of habitable rooms and to the majority of open space of adjoining properties be substantially maintained or achieved for a minimum of 3 hours between 9am and 3pm at the winter solstice. The adjoining property to the south, No 14 Hillcrest Avenue, has a door and two windows on its northern elevation. Based on the plans and the shadow diagrams provided in exhibit A, I accept the agreed planning evidence that the rear yard of No 14 maintains solar access until mid morning and is affected by new shadow throughout the afternoon, and that from noon there would be solar access for the front room of that dwelling. While that is a reduction in solar access, I accept the agreed evidence of the planners that given the orientation of the subject site and its neighbours, which is a matter identified in section 2.4.2 (requirement 1), it is inevitable that the property to the south would be affected by a degree of shadow for a new two storey dwelling on the subject site. In circumstances where the proposed building complies with the applicable side and rear setback, height and FSR controls, I accept their evidence that the degree of shadow is reasonable. 28In terms of privacy and noise, the plans provide for privacy screens on the southern sides of both the ground and first floor, and landscaping along the southern side boundary. Proposed condition 11 requires that the privacy screens be angled so as to eliminate the potential for overlooking of the adjoining property to the south. The rear setback complies with the 6m required under the DCP, and landscaping is proposed for the common open space area. Proposed condition 12 provides that the outdoor communal open space is not to be used between the hours of 10pm and 8am and is to be limited to use by a maximum of either persons at any one time. No restriction is proposed for the communal living room, the planners agreeing that the size of that room would limit the number of persons using it any one time. The primary access from that room to the outdoor area is from doors at the rear. The planners agreed that the orientation of all units to the northern aspect, including provision of private open space for the ground floor units on the northern side of the building, would reduce potential privacy and noise impacts to the property to the south. I accept the agreed expert evidence and I am satisfied that the proposed development in the form now reflected in the amended plans does not have an unacceptable impact on the amenity of the adjoining properties. 29The planners agreed that access from the building to the communal open space is appropriate, with access from both sides of the building and requiring three or four steps on the northern side. 30The Council initially contended that the proposed development would be likely to increase traffic congestion in Hillcrest Avenue and the local area. Concerns for traffic congestion and parking issues were identified in many of the objections made to the Council and at the site view. I accept the expert evidence of Mr Corbett as to the likely increase in vehicle movements attributable to the proposed development, which is based on his expertise and on RMS guidelines. I accept his evidence that the difference in timing of traffic for school drop off and pick up, activities at the Shree Shirdi Sai Mandir temple, and likely vehicle movements generated by the proposed development, mean that a significant adverse impact on the capacity of the local street network is not likely. 31The issue of safety and amenity of residents given the proximity to the Ausgrid electricity substation was raised in the contentions. The Council's bundle includes correspondence from Ausgrid (exhibit 4, tab 5) providing its requirements for noise assessment and exposure to electric and magnetic fields; those requirements have been incorporated in the proposed conditions (conditions 13-18). 32I am satisfied that the matters identified in the Council's contentions have been addressed. The matters raised in the objections included in addition a concern for impact on amenity and safety of existing residents arising from the nature of the development, as a boarding house, and its potential residents. As was the case in Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167, I accept that these concerns may be genuinely held. However, in the absence of substantive, objective evidence that such fears are likely to be realised, I accept the approach agreed by the Council that it is not appropriate to give them weight in the assessment process. I note that the proposed development as a boarding house is permissible with consent both under the AH SEPP as a matter of State policy, and also under the recently adopted Council planning controls in the LEP. I also note that the proposed conditions require, as a deferred commencement condition, provision of a Plan of Management for the ongoing operation of the boarding house to be approved by the Council, and in condition 7 a requirement that the use of the land be carried out at all times in accordance with that Plan of Management. Conclusion 33For the reasons above, I am satisfied that the proposed development is permissible with consent under the AH SEPP and the LEP; that it complies with the development standards provided in cll 29 and 30 of the AH SEPP, and with the height and FSR controls in the LEP; and that the departures from the numerical DCP requirements are consistent with the objectives of the DCP. I am satisfied that the proposed development is compatible with the character of the area as required by section 2.5 of the DCP, and that it provides for the housing needs of the community within a low density residential environment consistent with the objective of the R2 Low Density Residential zone. It is appropriate to grant development consent, subject to conditions. Those conditions include deferred commencement conditions, which provide that the consent will not become operative until the Council is satisfied that an easement for stormwater drainage in favour of the subject property is registered over the adjoining property (2 years); and that an amended landscape plan and a Plan of Management are provided to and approved by the Council (six months). 34The parties have provided a copy of the agreed Conditions. On receipt of an amended BASIX certificate from the applicant, the following Orders will be made: 1. The appeal is upheld. 2. Development application 2013/152 for the demolition of existing structures and construction of a two storey boarding house comprising nine studio apartments and one 1 bedroom unit above basement level car parking with associated landscaping and drainage works at 12 Hillcrest Avenue South Strathfield is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 2, 6 and A. 35The parties are directed to file an amended BASIX certificate by 5 September 2014, following which final orders will be made in chambers. Linda Pearson 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: 27 August 2014