Land and Environment Court New South Wales Medium Neutral Citation: Beresford Property Development Pty Ltd v City of Canada Bay [2015] NSWLEC 1118 Hearing dates: 17 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Class 1 Before: Hussey AC Decision: Consent orders: 1. The Applicant is granted leave to amend the development application and rely upon the amended plans referred to in condition DAGCA01 of annexure "A" hereto. 2. The applicant is to pay the costs thrown away as a result of amending the development application pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $10,000.00 within 28 days. 3. The appeal is upheld. 4. Development Application No. 297/2014 seeking approval for demolition of existing structures and construction of a new boarding-house comprising basement carparking, and 3 levels of accommodation at 11 Stuart Street, Concord West is approved subject to the conditions set out in Annexure "A. 5. Each party pay its own costs. 6. The exhibits be returned except for A, 2, 3, 4 and 6. Catchwords: Development application; Boarding house, compatibility with the character of the area, bulk and scale, landscaped area, solar access/amenity, privacy, traffic and parking. Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing ) 2009 (AHSEPP). State Environmental Planning Policy No 65 – Design Quality of Residential Flat development. State Environmental Planning Policy No 55 – Remediation of Land. BASIX Canada Bay LEP 2013 (CBLEP); Section 94 Developer Contributions Plan. Canada Bay Development Control Plan 2013. Cases Cited: Panarea Investments Pty Ltd v Manly Council 2015 NSWLEC 1026 Category: Principal judgment Parties: Beresford Property Development Pty Ltd (Applicant) Canada Bay Council (Respondent) Representation: Counsel: Mr P Clay SC (Applicant) Solicitors: Mr S Paterson (Respondent) Wiltshire Webb Staunton Beattie Lawyers Landerer & Company (Applicant) File Number(s): 10784 of 2014 Judgment Background 1. This appeal was lodged against council's deemed refusal of a development application for the demolition of an existing dwelling and construction of a boarding house containing 38 rooms plus managers room at 11 Stuart Street, Concord West. 2. The appeal commenced by way of a S34 Conference, which involved a site inspection and the taking of evidence from neighbours and objectors. After consideration of option to address the contentions and objections there was no agreement and the S34 Conference was terminated. 3. Subsequently, the matter was listed for hearing and the Respondent consented to the Applicant's amended plans being considered. The parties also agreed to me determining the appeal. 4. Following Council's consideration of the amended plans, the parties have agreed to consent orders. The site 1. The subject site is described as Lot 11 in DP 6154 and is located on the northern side of Stuart Street. It has a frontage of 15.445m a total site area of 1149.7sq m. 2. Currently erected on the site is a single storey masonry dwelling with a pitched roof. In 1988, Council approved the construction of a detached dual occupancy dwelling in the rear yard of the site. On 17 February 2009, Council approved a development application for the conversion of the existing garage to a gymnasium and to construct a carport in front of the garage. 3. The site is located within the medium density residential zone. The predominant form of surrounding development comprises one and two – storey dwelling houses to the east and west of the site. The property to the north contains a two-storey brick apartment building with a pitched and tiled roof. 4. To the south of the site is the intersection of Stuart and Consett Streets. The predominant development along Consett Street is a continuation of single storey dwellings. On the western side of Consett Street is St Ambrose Catholic Primary School. The school is contained within a large brick building with a tiled roof. The proposal 1. The amended development proposes: * The demolition of the existing dwelling and improvements on the site. * The construction of a new boarding house containing 38 rooms, comprising 25 double rooms, 12 single rooms and a separate managers unit. * The proposed building form is for a 3 –storey structure over basement garage for 9 vehicles including one disabled parking space, 8 bike spaces and 8 motorbike spaces. * The basement garage includes a turning bay at the northern end to enable vehicles to enter and leave the site in a forward direction. The access driveway is of a single lane width off Stuart Street, which widens at the basement and is subject to vehicle entry controls. 1. The detailing amendments made to the original proposal include: BASEMENT: * Basement at rear extended to enable a vehicle to do a u-turn and exit the basement in a forward direction * Flashing light system provided to indicate whether there is a vehicle on the ramp * Speed hump placed at the top of ramp to ensure vehicles slow down before approaching the footpath GROUND: * Re-Location of Manager's room within the courtyard to provide visual outlook * Bin holding room increased to provide the number of bins required * Manager's contact details have been placed on the facade * Removal of private open space to the rooms facing Stuart Street and replaced with 'Juliet Balconies' * Privacy screens incorporated into the courtyard with a fixed angle of 45 degrees. LEVEL 01 * Balconies facing Stuart Street removed and replaced with 'Juliet Balconies' * All other balconies amended to have 1.0m obscure glass balustrade with fixed angled louvres at either side and a return of 0.4m at 45 degrees * Removal of one room between the middle and rear buildings * Internal corridors to each building opened at one end to enable cross ventilation LEVEL 02 * One room has been removed from the building facing Stuart Street to enable a pitched roof that complements the existing streetscape * One room has been removed from the middle building to enable cross ventilation * The room between the middle and rear buildings has been removed * Dormer windows removed and operable skylights added within the roof form. Planning controls 1. The following planning controls are relevant: * State Environmental Planning Policy (Affordable Rental Housing ) 2009 (AHSEPP), which includes the following assessment matters: Clause 8 states: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. Division 3 addresses boarding houses. Clause 29 relevantly states: 29 Standards that cannot be used to refuse consent (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, (4) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2). Clause 30A states: 30A Character of 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. * State Environmental Planning Policy No 65 – Design Quality of Residential Flat development. * State Environmental Planning Policy No 55 – Remediation of Land. * BASIX * Canada Bay LEP 2013 (CBLEP); under which the site is within the R3 Medium Density Residential zone. * Section 94 Developer Contributions Plan. * Canada Bay Development Control Plan 2013. Contentions 1. A number of contentions were identified initially, which are summarised as follows: * Compatibility with the design and character of the local area; in terms of the existing predominance of one and two-storey dwellings nearby which have pitched and tiled hipped or gabled roofs. * Bulk and scale; is not compatible with the existing character and exceeds the allowable FSR of 1.00:1. Also the proposed Mansard roof would present as a third storey and would not be in character with the surrounding development. * Landscaped area; Inadequate area was proposed and the landscape area within the front setback area was not considered compatible with the streetscape. * Solar access to the internal communal living room was unsatisfactory. * Internal amenity to some of the upper level rooms was unsatisfactory in terms of providing adequate light and ventilation. * Privacy; concerning the proposed front balconies with overlooking of the neighbouring St Ambrose School. Also, the potential visual and acoustic impacts on neighbours arising from the internal open space. * Traffic and parking impacts on Stuart Street; including possible loss of on-street car space, pedestrian safety and increased traffic congestion. The evidence 1. As noted, the parties have agreed to consent orders on the basis of the amended plans. In doing so, the Council is satisfied that the amended plans reasonably satisfy the requirements of AHSEPP. For the Court's determination of these consent orders, the following evidence was presented: * Position Paper from Mr S Anderson, Council's Coordinator of Statutory Planning (Exhibit 5). * Joint Expert report from Mr S Anderson, Mr S Harding (Applicant's consulting planner and Mr A Morse (Consulting traffic engineer) (Exhibit 6). * Written and oral evidence from objectors at both the S34 Conference and view. 1. From their assessment, the experts agree that the amended proposal merits conditional consent. In his position paper, Mr Anderson supports the application based on his following assessment of the contentions: Compatibility of the Design with the Character of the Local Area; The residential character of the surrounding area is informed by a mix of two and three storey residential flat buildings, one and two storey dwellings with all residential developments having either pitched, hipped or gable tiled roof forms. The roof form of the building fronting Stuart Street has been modified to change the mansard roof form with dormer windows to a hipped and tiled roof form with skylight windows, which is in keeping with the existing and desired streetscape character. Containing the upper level rooms within the roof has ensured that the building wall heights of the development are compatible with typical two-storey development. The external colours and materials have been altered to ensure that the face brick, render and roof tiles are complimentary to the streetscape. The submitted clause 4.6 variation that has been submitted with respect to the 8.5 metre building height control of the Canada Bay LEP is considered to be well founded and has demonstrated that compliance with the standard is unreasonable and unnecessary and that there are sufficient environmental planning grounds to justify contravening the building height standard Bulk and scale; The "gross floor area" of the proposed development has been reduced to comply with the maximum Floor Space Ratio of 1:1 as prescribed by the State Environmental Planning Policy (Affordable Rental Housing). The incompatible mansard roof form has been deleted and replaced with a hipped and tiled roof to compliment the surrounding residential character. The external wall heights of all buildings have been kept to a scale compatible with the existing desired future residential character of a two-storey residential development in a R3 Medium Density zone. Landscaped area; The relocation of the manager's unit and associated private open space from the front of the development towards the centre of the site will result in a landscape treatment and openness consistent with surrounding residential developments. The communal area at the centre of the site adjoins the enclosed communal room and is readily accessible to the residents of the boarding house. Adequate soft landscaping is provided to the perimeter of the development to provide an adequate vegetation screen to the residential development. Solar access to communal living room; Submitted 3D shadow diagrams (reference A1340, dated 5 December 2014) have demonstrated that the communal living room will receive direct sunlight between 9am and 2pm in mid-winter. It is also noted that the communal open space area will receive direct sunlight to at a large proportion of its area between 9am and 3pm in mid-winter with the largest amount of sunlight falling between 9am -11am and 2pm - 3pm mid-winter Internal amenity for boarding house occupants; These rooms were identified to be located in the mansard roof with no windows or skylights. Revised plans have been submitted which have reduced the number of rooms within level 2 with skylights being provided to all rooms on this level and with some of these rooms having access to windows from recessed alcoves in the roof form Any development approval for the site will need to comply with the light and ventilation requirements of the Building Code of Australia prior to the issue of a Construction Certificate. Private open space; The proposal complies with the minimum standards for private open space areas set out in State Environmental Planning Policy (Affordable Rental Housing). As the residential rooms are self-contained with bathrooms and kitchenettes there will be reduced requirements for communal living spaces. The allocated communal living room and adjoining open space area will be suitable to meet the needs for casual use. Privacy The large balconies to the front building overlooking Stuart Street have been removed and replaced with Juliet balconies that are to have solid balustrades and louvers to their outside edge. The remaining balconies are to be comprised of obscure glass balustrade with fixed angled louvers to a minimum of 2.5metres above finished floor level to the sides with portions to form returns to selected balconies. Privacy louvers are will also be placed to the eastern and western sides of the planter beds around the ground floor communal open space area, and to the outside eastern and western sides of the private open space areas to the two rear buildings. Traffic and parking on Stuart Street; The allocated parking spaces will comply with the parking requirements of Clause 29(2)(e) of the State Environmental Planning Policy (Affordable Rental Housing). Therefore the consent authority is not able to refuse consent to development to which this clause applies. It is noted that Stuart Street is located within close proximity to the adequately serviced Concord West railway station. Public interest; Insofar as there were a considerable number of objections, the development, as amended, will be consistent with the provisions of the State Environmental Planning Policy (Affordable Rental Housing), in particular the landscape area, solar access, private open space, car parking, and accommodation size. Suitable amendments have been made to the both the building and roof form to ensure that the development is consistent with the character of the local area. 1. The joint expert conference was undertaken after the view in order to further inform the Court on the objections made. With regard to the concerns about the 1.14m height exceedance of the proposal, which occurs on the street front building component, the experts agree that it is acceptable in the circumstances because it satisfies the objectives of the height development standard as well as the objectives of the R3 zone. Also, the variation is an appropriate balance between accommodating some of the 0.5:1 FSR allowable above the LEP provisions, in a building form that provides a hipped roof character to be compatible with surrounding development. 2. With regard to character compatibility, the experts agree that the combination of the three smaller building component footprints, pitched roof element, materials and landscaping of the front setback will result in a building character that is compatible with the local area. 3. The planners also referred to the proposed conditions of consent, which are to be imposed in order to protect the amenity of the neighbourhood. They include: * Dilapidation report; required for the adjoining No 13 Stuart Street to ensure excavation on the subject site is undertaken without damage to adjoining property. * On-site parking; is compliant with the AHSEPP provisions and is to be allocated in accordance with the Plan of Management (POM) provisions to avoid disamenity from competing tenants. * Public domain safety; in particular this concerned safety of school children going to/from St Ambrose School during any construction period. This is to be covered by a Construction Management Plan (CMP) approved prior to construction commencing by Council. * Further amendments; including a fixed window pane to be installed in the bin room adjacent to the boundary together with mechanical ventilation, the details of which are to be incorporated in the Construction Certificate. Also, additional velux windows are to be installed in the upper Level 2 rear building rooms. * Overshadowing; the planners agree that the proposal meets the relevant planning criteria for overshadowing i.e. a minimum of 3 hours during the designated period. Conclusion 1. Having carefully considered the evidence, objections, submissions and undertaken a view, I am satisfied that the consent orders for the amended proposal merit consent. 2. The prevailing control in this matter is the AHSEPP, which encourages affordable housing in certain areas and allows for some variations to other local planning controls. Based on the evidence of the experts, I am satisfied that the proposal reasonably complies with the AHSEPP provisions. 3. Insofar as particular concerns were raised about the 1.14m height exceedance of the front building component from the CBLEP, a cl 4.6 Written request was submitted, which concluded that the overall development addresses the site constraints, streetscape and relevant objectives of both the standard and the zone and consequently the variation will not result in unreasonable environmental impacts. Therefore in this case, strict compliance is unnecessary and unreasonable. I note that there was no compelling evidence contrary to this. 4. However in submissions, Mr Clay referred to a recant matter of Panarea Investments Pty Ltd v Manly Council 2015 NSWLEC 1026, wherein Brown C determined that: What is the appropriate test for the height variation? The appropriate test for the height variation was raised by the parties although the hearing proceeded largely on cl 29(4) of SEPP Affordable Housing, in that the Court may consent to development to which SEPP Affordable Housing applies even though the development does not comply with the height standard in LEP 2013. The other scenario was that the non-compliance with the height standard required a written request, under cl 4.6 of LEP 2013, to support the variation. While it was not the applicant's principal position, a written request was provided for abundant caution. I am satisfied the cl 29(4) of SEPP Affordable Housing allows the Court to determine whether the variation to the height standard is appropriate. The use of cl 29(4) of SEPP Affordable Housing is not unfettered and must come with some consideration of the variation sought. In this case, the variation has been assessed against the relevant requirement in LEP 2013, the DCP and the Design Guidelines and found to be acceptable. If I am incorrect in relying on cl 29(4) of SEPP Affordable Housing, then I am also satisfied that the cl 4.6 written request supports the variation to the height standard. 1. I accept this approach and accordingly it appears that some discretion can be exercised in the application of the height controls. I am satisfied to rely on the planner's agreement that the overall height of the proposal, is acceptable in the in the context of the overall objectives of AHSEPP. This agreement has taken into consideration the cl 4.6 written request details, which I am satisfied supports the proposed variation for the amended building height. 2. One of the other contentious issues concerned parking, traffic impacts and pedestrian safety. The amended proposal satisfies the AHSEPP parking provisions and the objector's calls for more on-site parking is not supported by the SEPP for this type of development. Whilst there is apparently traffic congestion around the school environs, the incremental change for this proposal is not sufficient to warrant refusal of the proposal, according to the expert evidence before the Court. 3. Mr Morse says that the access/egress arrangements conform to the relevant standards, including that vehicle enter and leave the site in a forward direction. As there will be a satisfactory gradient transition to the Stuart Street footpath, adequate sight distance and safety should result for the pedestrians. Therefore I do not consider there was any substantive evidence to refuse the application on parking and traffic issues, raised by the objectors. 4. In the ultimate, I rely on the evidence of the planners that the setbacks on the amended proposal are satisfactory and that a reasonable level of internal and external amenity should result subject to compliance with the agreed conditions of consent. In the ultimate, I am satisfied that that the development is consistent with the zone objectives and objectives of the building height standard and the provisions of AHSEPP so as to merit consent. Consent orders 1. Accordingly, the Court orders by consent: 1. The Applicant is granted leave to amend the development application and rely upon the amended plans referred to in condition DAGCA01 of annexure "A" hereto. 2. The applicant is to pay the costs thrown away as a result of amending the development application pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $10,000.00 within 28 days. 3. The appeal is upheld. 4. Development Application No. 297/2014 seeking approval for demolition of existing structures and construction of a new boarding-house comprising basement car parking, and 3 levels of accommodation at 11 Stuart Street, Concord West is approved subject to the conditions set out in Annexure "A. 5. Each party pay its own costs. 6. The exhibits be returned except for A, 2, 3, 5 and 6. Hussey AC ********** 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: 28 April 2015