Land and Environment Court New South Wales Medium Neutral Citation: Soueid v Canterbury Bankstown Council [2016] NSWLEC 1420 Hearing dates: 6, 7 & 9 September 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION: mixed use development containing commercial and boarding house uses, road widening, character, access, adequacy of plans Legislation Cited: Canterbury Local Environmental Plan 2012; State Environmental Planning Policy (Affordable Rental Housing) 2009; Environmental Planning and Assessment Act 1979 Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Texts Cited: Canterbury Development Control Plan 2012; Building Code of Australia; Australian Standard AS/NZ 2890.1:2004 Category: Principal judgment Parties: Faisal Soueid (Applicant) Canterbury Bankstown Council (Respondent) Representation: Counsel: Mr R O'Gorman-Hughes (Applicant) Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr P Jackson Pikes Verekers Lawyers (Respondent) File Number(s): 157498/2016 Judgment 1. Mr Soueid lodged Development Application DA-602/2015 on 9 December 2015 seeking consent to demolish existing structures (retaining to the commercial shop) and construct a six story mixed use development comprising of one commercial tenancy and 33 boarding rooms at the corner of Georges River Road and Brighton Avenue, Croydon Park. The Council had not determined the application within the prescribed period and Mr Soueid is appealing its deemed refusal. The site and its context 1. The site comprises three properties on the southern side of Georges River Road and the western side of Brighton Avenue, Croydon Park being 158 Georges River Road (Lot 1 in DP 436928), 160 to 162 Georges River Road (Lot 2 in DP 11551) and 2 to 8 Brighton Avenue (Lot 2 in DP 436928). A right of way 3.66m wide runs along the rear (southern) boundary of 160 to 162 Georges River Road and 2 to 8 Brighton Avenue which provides access from Brighton Avenue to properties to the west of the site. 2. The three lots have a total area (by title) of 575.4m² with a frontage to Georges River Road of 12.68m and to Brighton Avenue of 49.2m. There is a fall of around 3.3m from the northern boundary to the rear of the site. Both lots that front Georges River Road are subject to road widening. 3. A retail shop is located on 158 and on 160 to 162 Georges River Road and this structure is proposed to be retained. A number of outbuildings at the rear of these two lots and a toilet block at Nos. 2 to 8 Brighton Avenue are proposed to be demolished. 4. The site is located at the eastern end of the Croydon Park local centre. Properties to the west form part of the commercially zoned centre and are also burdened by the road widening. Properties to the north of the Georges River Road are located within the Burwood local government area and include other commercially zoned land as well as the Croydon Park Public School. The majority of the retail premises comprise two storey buildings with ground level commercial/retail uses and first level residential components. A fast food restaurant with basement carpark is located further to the west of the site on the corner of Georges River Road and Dunmore Street. That building is setback from the frontage of the site and a has car park located to the north of the building structure within that area reserved for road widening. 5. The property to the east of the site (opposite Brighton Avenue) is currently used as a place of worship with properties to the south comprising single-storey bungalows. A small pocket of industrial zoned land is located to the south east of the site on the opposite side of Brighton Avenue and is used for a range of industrial purposes. Background and the proposal 1. The appeal was subject to mandatory conciliation on 23 June 2016, in accordance with the provisions of s 34 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 that day, pursuant to s 34(4) of the LEC Act. 2. The applicant was granted leave to rely on amended plans on 20 July 2016. Those plans exhibit A, were the plans that were the subject of notification to affected residents and joint conferencing between the experts and proposed: * Retention of two existing retails shops addressing Georges River Road; * Demolition of the rear outbuildings; * Construction of a six storey mixed use development containing one ground floor commercial space with a 32 room boarding house (including a manager's room and communal open space) with basement accessed via Brighton Avenue providing parking for 9 cars (8 in a mechanical car stacker) and 5 motor cycles and ground level parking for 4 cars and 7 bicycles. The planning controls 1. The northern section of the site is zoned SP2 - Infrastructure (Classified Road) under the provisions of Canterbury Local Environmental Plan 2012 (LEP). The remainder of the site is zoned B2 Local Centre. The two existing shops that will be retained are located within the SP2 zone with the new development wholly contained within the B2 zone. 2. Clause 2.3(2) of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objective of the B2 and SP2 zones are: Zone B2 Local Centre 1 Objectives of zone • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To facilitate and support investment, economic growth and development for active, diverse and well-designed centres. Zone SP2 Infrastructure 1 Objectives of zone • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. 1. Part 4 of the LEP contains principal development standards with clause 4.3 Height of buildings and its associated map establishing a maximum building height of 18 m. No floor space ratio (FSR) applies to the site pursuant to clause 4.4. 2. The application is lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). No maximum FSR is established under that policy. 3. Canterbury Development Control Plan 2012 (DCP) applies to the site with Part 3, Business Centres and Part 6.8 Vehicle access and parking particularly relevant to the contentions in the case. 4. The Part 3 controls apply to land in B1, B2, B5, B6 and SP2 Roselands car park and landscaped area only. There are no other controls specific to land zoned SP2. 5. The objectives of the controls for the business centre are: O1. Lively business centres accommodating a mix of retail, commercial and community activities, and catering to locals and the wider community, relative to their size and intended function. O2. Long-term social and economic viability of business centres is maintained and they remain significant to the community for their individual character, ease of access, and urbane appeal. O3. Retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres O4. Facades are maintained in the business centres where they contribute to the character of the traditional main streets. O5. Frontage type is appropriate for the location and will maximise activity at the public/private interface, and provides weather protection for pedestrians. O6. Impacts of commercial development on adjacent residential properties are minimised. 1. The site is identified as a Gateway site under the DCP. Clause 3.2.6 establishes the following objectives and controls for corner and gateway sites as follows: Objective O1. Building emphasis at particular points strengthens the legibility of the urban structure. Controls i. Gateway and foreground treatment sites are shown on the envelope diagrams in Part 3.1. ii. Emphasise important corners and gateways to centres with foreground treatments that are visually prominent against the background built form, in order to improve understanding of each centre - use stronger foreground treatments for gateway buildings. iii. Use corner features, wrap around balconies, vertical elements, changes in materials or colours and the like to emphasise corner buildings – vertical corner features do not exceed 1.5m above the maximum height of the building, or 2m for gateway sites. iv. Variation to the front setback requirements may be considered to emphasise a corner or gateway building. v. Retention of characteristic facades may be given precedence over emphasising corner and gateway sites. 1. Clause 3.1.6 contains the following objectives and controls for height: Objectives O1. New buildings have a scale that is visually compatible with adjacent buildings and heritage buildings, where this may require height of new development to lower than the permitted height. O2. Transition in scale and bulk from highest in the middle of centres to lower at the interface with residential zones and residential buildings. O3. Greater guidance as to the required built form through the provision of maximum storeys controls. O4. Floor to ceiling height is adequate for the operation of the intended and potential use. O5. Good residential amenity within buildings and externally, including natural light access for dwellings. Controls Building height i. Refer to the CLEP for maximum height of buildings in metres. ii. For proposed new buildings in a traditional streetscape, the building height at the street wall is to be compatible with the height of adjoining and nearby two storey buildings. Floor to ceiling heights iii. Provide a minimum 3.3m floor to ceiling height for the ground floor. iv. Provide a minimum 2.7m floor to ceiling height for residential floors. v. Minimum car parking floor to ceiling height 2.8 m: vi. The floor to ceiling height may need to be increased to meet the requirements of the intended use, however, the maximum building height will still need to be complied with. 1. Setback objectives and controls are contained within clause 3.1.8 as follows: Objectives O1. Establish the desired spatial proportions of the street and define the street edge. O2. The traditional street building wall is maintained where this is the existing or desired future character. O3. Minimise building size and bulk by setting back upper storeys. O4. Minimise amenity impacts on adjoining properties. O5. Increased setbacks along Canterbury Road provide for possible future implementation of street parking and assist in reducing traffic noise impacts. Controls i. Comply with the street level setback, number of storeys at the street level, and upper level setback in the following table. ii. A rear setback is not required if the land adjoins a lane. iii. Do not present a flat façade along the setback line - provide articulation and variation. (Refer to section 3.2.3 on articulation) iv. Variations may be acceptable on the secondary street, on corner sites, to allow for outdoor display areas and outdoor dining. v. If required on the envelope diagram, set the ground floor back for a colonnade. 1. The associated table provides for 1 to 3 storeys to be built to the front boundary and, for buildings higher than four storeys, the setback is 5m for the fourth storey and above. 2. In addition, there are setback controls from land which adjoins residential zones. This applies to the application and the setbacks required are met. 3. Part 3.2 of the DCP establishes Design Controls and those particularly relevant to the contentions in the case are context; street address; façade design and articulation and corners, gateway sites and foreground treatments. 4. Figure 3.1.8 is the Croydon Park structure plan and as well as identifying the site as a gateway site, it depicts the site, the extent of road widening, the requirement for retail/commercial street activation along the northern extent of the B2 zone that would be the frontage to the widened road and along the Brighton Avenue frontage. An area at the rear of the site is nominated as possible parking area. The structure plan applies to the local centre on its southern side from Brighton Avenue in the east to Hampton Street in the west. 5. It is common ground that the local centre on the opposite side of Georges River Road within the Burwood local government area has similar planning controls in relation to street wall height (9m maximum) and setbacks for upper levels at a minimum of 3m above the podium. The issues 1. The contentions in the case are whether the design of the development is compatible with the desired future character of the site within the Croydon Park small business centres, as identified in the DCP; the development represents an overdevelopment of the site; adequate residential amenity is provided within the boarding house rooms; adequate carparking bicycle parking and service vehicle facilities is provided; adequate vehicular access and manoeuvring is provided and adequate information is provided in relation to an operational Plan of Management (POM), stormwater management, landscaping, BASIX certification and manoeuvring within the ground level car spaces. 2. Through the provision of additional information and joint conferencing the council did not press the contentions relating to stormwater, landscaping and manoeuvring and proposed conditions of consent that would address these issues and the deficiencies in the POM. 3. Despite the tender of a number of BASIX certificates throughout the hearing, by the end the certificate relied on by the applicant, exhibit L had inconsistencies with the final plans for which approval was sought and leave granted during the hearing, Exhibit K. 4. It is common ground that the height of the development exceeds the 18m development standard and the floor to ceiling heights do not comply with the 2.7m minimum required for residential development under the DCP provisions. There is also a dispute in relation to whether the room sizes satisfy the SEPPARH provision to accommodate two persons and if sufficient amenity is provided to some of the rooms. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. The following is a summary of the issues raised: * Excessive height, bulk and scale; * Traffic and parking impacts including obstruction of access along right-of-way/driveways and exacerbation of parking problems particularly at school pickups, safety concerns regarding pedestrians/children; * Development is inconsistent with the streetscape; * Overshadowing and overlooking of adjacent residential properties; * Adverse amenity impacts; * Inappropriate location for boarding house opposite primary school and away from railway station; * Haven't seen any POM. Traffic and parking Traffic, access and Parking 1. Vehicle access to the site is from the right-of-way with the width of the access increased to 7.2m across the site. Whilst not shown on any of the plans the Court was told the area would be concreted. The applicant does not propose to increase the width of the right-of-way. A car entry holding bay is shown on the right-of-way at its eastern end with traffic signals proposed to deal with possible conflicts between vehicles leaving and entering the carpark. As no security door had been shown on the plans the Court questioned whether these were proposed. Further amendments were made to the plans to secure the basement with a roller shutter door proposed towards the top of the ramp. 2. The plans now before the Court propose parking for 6 cars within the basement area, 5 in a car stacker and one accessible space. Four spaces would be provided at ground level in stacked arrangements with two tandem spaces provided at right angles to the right-of-way and in the south-eastern corner of the building. 3. A turntable is required to facilitate access to a number of the spaces. Initially the plans provided for an 8 car stacker and 9 spaces in the basement however, as the council was concerned the maximum vehicle height that could be accommodated was 1.8m the applicant altered the stacker system to one that provided for 2.1m. This is still below the Australian Standard height for parking spaces of 2.2m. 4. A ramp at the south western corner of the proposed building would provide access to a basement carpark. That width of the ramp is not shown on the plans and scales 3.8m. It is agreed that it is not wide enough for two way movements. The ramp has a grade of 1:8 for the first 2m at the entrance off the widened driveway and at the basement end and 1:4 for the remainder of its length. 5. The contention in relation to the acceptability of the access driveway relates to the interpretation of Australian Standard AS/NZ 2890.1:2004 (the standard) and in particular clause 3.3 Gradients of access driveways. 6. Mr Abdel, the council's expert says that the basement ramps require a gradient that must not exceed 1 in 20 for the first 6m from the building line in accordance with Clause 3.3(a) of the standard. That clause reads as follows: 1. Property line/building alignment/pedestrian path – max. 1 in 20 (5%) between edge of frontage road and the property line, building alignment or pedestrian path (except as provided in Item (d)), and for at least the first 6m into the car park (except as provided below)……. 2. Vehicular control points – max. 1 in 20 (5%) for at least 6m prior to the control point. 3. Queuing area – max. 1 in 10 (10%) for not less than 0.8 of the queue length determined in Table 3.3. 4. Across footpaths - where the driveway crosses a footpath, the driveway grade shall be 1 in 40 (2.5%) or less across the footath over a lateral distance of at least 1.0m. 5. For ramps and circulation roadways at locations other than in Items (a) to (d), see Clause 2.5.3……. 1. Mr Abdel says the extended right-of-way is the frontage road and therefore the first 6m of the driveway is required to be no greater than 1 in 20. 2. Mr Hutcheson, the applicant's expert disagrees and says the extended right-of-way is not a frontage road and the frontage road in this case is Brighton Avenue. Therefore he says the provisions of clause 3.3(a) do not apply but rather, the provisions of clause 2.5.3 are relevant, in particular subclauses (b) and (c). Those provisions read as follows: 2.5.3 Circulation roadway and ramp grades Limiting requirements for grades on circulation roadways and ramps shall be as follow:…… (b) Straight ramps: private or residential car parks (other than domestic driveways, see Clause 2.6) – as follows: (i) Longer than 20m – 1 in 5 (20%) maximum. (ii) Up to 20m long – 1 in 4 (25%) maximum. The allowable 20m maximum length shall include any parts of grade change transition at each end that exceed 1 in 5 (20%). (iii) A stepped ramp comprising a series of lengths each exceeding 1 in 5 (20%) grade shall have each two lengths separated by a grade of not more than 1 in 8 (12.5%) and at least 10m long. Grade change transitions will be required in both cases where grades are at or near the maximum, see Item (e). (c) Curved ramps – as for straight rams, except that the grade shall be measured along the inside edge, i.e. the line marked with radius Ri in Figure 2.9. 1. To assist in the interpretation of the clauses, the Definitions section of the standard includes the following definitions.: Access driveway A roadway extending from the edge of the frontage roadway to the property boundary to connect with the first ramp, circulation roadway, parking aisle or domestic driveway encountered, and carrying one- or two-way traffic (see Figure 2.1). Domestic driveway A vehicular path within a domestic property. Domestic property A property comprising three or less domestic units. Local road A road or street used primarily for access to abutting properties. Ramp A circulation roadway which connects an access driveway to an off-street car park or a substantially different level, or which connects two levels in a multi-level car park (see Figure 2.1) Road The entire width of a right-of-way between property boundaries, and including footpaths. Roadway Any one part of the width of a public road or a vehicular traffic path in an off-street car park devoted particularly to the use of vehicles, inclusive of shoulders and auxiliary lanes, but exclusive or parking spaces. Findings 1. I prefer the evidence of Mr Hutcheson and agree that the right-of-way is not a frontage road but rather an access driveway and therefore the provisions of clauses 2.5.3(b) and (c) apply. He advises the grades of the ramp are compliant with that clause. I do however acknowledge Mr Abdel's concern at the lack of sight lines available to drivers when travelling up the ramp from the basement. Car parking 1. Mr Abdel says the proposed car stacker is not appropriate as it does not comply with the depth and width outlined in the Australian Standards because the maximum length of car that can be accommodated is 5m and the maximum vehicle height is 2.1m. He says the size of parking spaces is to be a minimum of 5.5m in length and 2.2m in height. Because the spaces are only able to accommodate a vehicle with a 5m length and 2.1m height being less than the minimums he says there will be a considerable impact on on-street parking. He says that the standard includes 2 vehicles that are in excess of 2.0m, an older series Toyota Land Cruiser which is stated to be 2.155m and a Transit van which has heights ranging from 2.055m to 2.575m. He acknowledged that the standard is a 2000 document and he was unsure whether current vehicles could be accommodated in the stacker that is proposed which accommodates vehicles up to 2.1m. 2. Mr Hutcheson says that the stacker provides a 5.5m depth dimension and that this meets the minimum clearance recommended around the vehicle. A B99 vehicle is 4.91m long which is less than the 5.0m and therefore acceptable. He says that the stacker as originally proposed accommodated a vehicle up to 1.8m high. Only a small percentage of vehicles are in excess of this height and would include vans and four wheel drive vehicles which would need to be parking on street if such a vehicle was owned by a resident. He says the impact on on-street parking would be negligible. 3. Neither expert could assist the Court as to heights of more contemporary vehicles so I have investigated this issue and reported to the experts that the height of a current model Land Cruiser 200 is 1905-1970mm. They agree that it could be accommodated within the stacker that is proposed. 4. Mr Hutcheson said that parking should accord to that required under the provisions of SEPPARH and that in the absence of the stacker it would not be possible to physically fit more than 4 vehicles in the basement area. He did not consider this was sufficient. Mr Abdel deferred to the planning expert in relation to what would be the minimum number of spaces to be provided on site. Findings 1. I am satisfied that the proposed stacker system, the WOHR Combilift Premium type 542 – 2600kg would accommodate the majority of vehicles likely to used by residents of the boarding house. The stacker can accommodate the same length of vehicle that the length of parking space that is required i.e. 5.5m. 2. Whilst never considered as part of the POM, it is clear that the parking spaces would need to be managed and therefore the applicant now proposed that these spaces be allocated to tenants of units at time of rental at no cost. This would ensure that the spaces are used and vehicle size managed. 3. The number and location of bicycle parking spaces was also resolved and is shown on the plans. Manoeuvring 1. Concerns regarding internal circulation space, swept paths for the at grade parking spaces and conflicts between vehicles and pedestrians within the basement area were resolved through the amended Exhibit K plans and the agreed conditions that require synchronisation of the stacker, turntable, roller door and traffic signals. 2. It was agreed that a vehicle standing on the car entry holding bay would obstruct any vehicle that sought access to the properties to the west using the right-of-way that serves those properties. The applicant proposes to address this through the imposition of a condition that would provide unfettered access across the additional driveway area to the parties that benefit from the right-of-way however is not prepared to extend the width of the right-of-way on title. 3. No analysis of the use of the right-of-way had been conducted and the only evidence available to the Court is that of the residents who advise it is used frequently including by ambulances associated with the medical practice to the west. Findings 1. The experts have prepared a condition of consent (draft condition 86) that would address the complex synchronisation of the traffic management system to the car stacker to ensure delays are minimised. The other contentions relating to manoeuvring have been addressed through the amended plans and the applicant's proposed conditions to provide access across the site to properties to the east. Planning 1. Expert town planning evidence was heard from Mr N Kennan for the applicant and Mr S McDonald for the council. Character 1. The provisions of clause 30A of SEPPARH require: 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. 1. The experts agree that when determining whether the proposal is compatible with the character of the local area both the existing character and the desired future character should be considered. The existing character of the local area is made up of: early 20th century buildings which are predominant the retail development with what is most likely residential development above that retail development; a McDonald's restaurant with an open asphalt carpark and drive-through and with frontage to Georges River Road and Dunmore Street; the Croydon Park Public School; a place of worship and associated buildings opposite the site; low density residential development to the south of the site; light industrial development to the south east of the site in Brighton Avenue; a dwelling house associated with the place of public worship. 1. They also agree that the desired future character (DFC) is best determined by reference to the suite of planning controls applicable to the local area. In this regard, that part of the local area to the south of Georges River Road is subject to the Canterbury Bankstown planning controls, whereas that part of the local area on the northern side of Georges River Road is subject to the Burwood City Council planning controls. The subject site and all land to both the east and west fronting Georges River Road carries a dual zoning as a result of the Georges River Road frontage including a SP2 Classified Road zoning (effectively a road widening reservation), required by Roads and Maritime Services (RMS). In the event that the road widening occurs, it is agreed that this will have a significant impact on the future character of the local area because the future character would see all the development currently located in the SP2 zone being demolished to give effect to the proposed road widening. 2. The RMS, in correspondence dated 1 February 2016, advised that it did not object to the proposal provided all new buildings, structures or improvements integral to the future use of the site are erected clear of the land reserved for road widening (unlimited in height or depth). The applicant addressed this issue in the Exhibit K plans by deleting works including tables and chairs in the area between the existing and proposed buildings. 3. The land to the south and east of the site in the Canterbury Bankstown area is zoned R4 High Density Residential. As such, that land is earmarked for future high density residential development. 4. For these reasons, the experts agree the DFC of the local area is one which would see the existing development within the SP2 zone demolished and replaced with contemporary development. They note there is no road widening of zone applicable to the northern side of Georges River Road and that it would be reasonable to expect that any development of that part of the local area would retain some of the existing facade is to Georges River Road. 5. There is no agreement as to whether the proposed design of the development is compatible with the local area. 6. Mr Kennan cites the planning principal in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 which states among other things: There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is about different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. 1. Mr Kennan says the planning controls clearly envisage a change in character where the existing 20th century buildings fronting the southern side of Georges River Road would be replaced with more contemporary development and the low density residential development to the south of the site would be replaced with high density residential development. While the proposed development is not the same as the existing development in the local area, he says that it is compatible with that development and is clearly compatible with the DFC of the local area as envisaged by the planning controls. In addition, Burwood City Council was advised of the proposed development during the exhibition of the original development proposal and raised no objection from the development. He assumes that the Council did not consider the development to be out of character with either the existing or proposed future character of the northern side of Georges River Road. 2. In relation to the DCP provisions, Mr Kennan says the site displays individual circumstances which are not common, in that the DFC of the locality would see the demolition of development currently contained within the SP2 zone. In the meantime, the existing development in the SP2 zoned section of the site is to be maintained. As such, prior to the development of the SP2 zoned land by the RMS, the site will contain two distinct development types, those being the proposed development and the existing retail development in the SP2 zoned section of the site. He says the DCP does not require a proposed development to comply with the controls contained in the DCP but rather the planning controls are a means of achieving the objectives of the DCP. Whilst the proposed development does not, in part, accord with the building setback and building height controls and hence, there is a partial non-compliance with the building envelope requirements of the DCP, the individual circumstances of the site, and indeed, its determination as a gateway site, are such that, on balance, the areas where non-compliance exists are reasonable and would result in a development which, from a planning and urban design perspective would fit with the DFC of the area. 3. Mr McDonald agrees that in the event that the road widening occurs it will have a significant impact on the future character of the local area. Prior to that road widening taking place he says the future character of the area would involve the retention of existing two storey built form with ground level retail and new development set behind consistent with built envelope controls specified in the DCP. Post road widening he says the character would comprise shop top housing with ground level retail/commercial fronting Georges River Road and built form consistent with building envelope controls. He references Figure 6 in the structure plan for the Croydon Park local centre which he says shows the future building footprint and form following road widening for all of the properties fronting Georges River Road and identifying the site as a "Gateway site". 4. He says the design of the new building should assume the future road widening and the demolition of the existing shop and should accommodate a larger retail space at ground level wrapping around in Brighton Avenue and so establishing the first of what will eventually become a new retail high street. Because the development is the first of what is anticipated to be a series of new developments in the local area fronting the southern side of Georges River Road this design should reflect the outcomes anticipated by the contemporary planning controls for the site as it will establish the context into the future. 5. Mr McDonald concludes the proposal is not compatible with the DFC as it contains some significant departures from the planning controls, particularly the DCP controls relating to building envelope, setbacks, street activation and facade design. Street activation 1. Objective O3 of the Business Centre controls requires retail and business activity is maintained at ground level to promote pedestrian activity and contribute to lively streets in centres. Mr Kennan says the commercial/retail component of the proposed development is appropriate for the gateway location of the site and, once the proposed road widening has taken place, would provide a form of development consistent with that objective. 2. Mr McDonald disagrees and says the commercial/retail component with its area of around 45 m² and having virtually no frontage to Brighton Avenue is inadequate and inappropriate for the gateway location of the site. He did not consider the amended plans which introduced a doorway and lobby to the commercial space off Brighton Avenue addressed his concerns and he still maintains the Brighton Avenue frontage is dominated by inactive and blank walls at ground level with the majority of that level occupied by services and storage of various forms being predominantly inactive space. Overdevelopment 1. It is common ground that the proposed development exceeds the 18m height of buildings development standard set by the LEP in that the lift overrun is proposed to be at a height of 18.7m. The remainder of the proposal complies with that development standard. 2. Mr Kennan had assessed the non-compliance against the provisions of clause 4.6 of the LEP which provide for variation to development standards and said the variation is minor however, it is agreed, pursuant to clause 29(4) of SEPPARH that consent may be granted whether or not the development complies with the standards set out in subclause (2). Those standards include building height. 3. Mr McDonald says the 2.4m floor to ceiling height proposed is less than the 2.7m minimum internal height required under the DCP. The proposal is for 32 self-contained dwellings (inclusive of the managers unit) in the form of multiunit development and he says this form of the boarding house development should provide accommodation at a reasonable standard and this would include a minimum floor to ceiling height of 2.7m, consistent with the DCP provisions. That is because the DCP does not discriminate regarding various forms of residential development in the business zones, adopting the minimum 2.7m for all forms of residential development. He says the design approach is clearly taken in order to achieve six storeys without a resultant significant breach of the 18m height standard for the site and is an unacceptable design response in the circumstances. 4. Mr Kennan says the proposed 2.4m floor to ceiling height is acceptable and consistent with the provisions of Part A3 .2 and Part F3 of the Building Code of Australia (BCA) which determines that the proposed boarding house is a Class 3 building and that the height of rooms and other spaces within such a building must not be less than 2.4m for habitable rooms excluding kitchens and 2.1m for kitchens, laundries, corridors, passageways or the like. He says that the lower ceiling height is appropriate for developments under SEPPARH and would ensure the construction would be cheaper to produce. Residential amenity 1. In addition to the floor to ceiling heights discussed above, the experts disagree as to whether the standards set out in clause 29(2)(f) of SEPPARH are met. That clause is in the following form: (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. 1. It is a standard that if met, cannot be used as a reason to refuse consent. 2. Mr McDonald says the room size calculations provided by the applicant do not include a realistic or practical calculation for the kitchen space in the rooms, noting that any area used for the purposes of private kitchen or bathroom facilities are excluded from minimum room sizes. The calculations include only the footprint of the bench top areas and calculate the "kitchens" to be as small as 0.78m² in some cases and with combined kitchen and bathroom areas for some rooms being only 4.7m². In numerous cases he says these unrealistically low calculations for the kitchen areas result in room sizes meeting minimum room sizes however he does not consider the intent of the provision is met and therefore the occupation of the smaller rooms should be limited to single occupancy. He says SEPPARH contemplates rooms with kitchens and if you incorporate such facilities within a boarding room then you have to have a certain minimum floor area available for either single or double occupancy exclusive of kitchens and bathrooms. 3. What became apparent during the hearing and reviewing the various iterations of plans before the Court is that the floor area calculations and tables provided by the applicant including those incorporated into the BASIX certificate were inconsistent. 4. In cross-examination Mr Kennan advised that the kitchens provided either a microwave or cooktop however no details were included on the plans to validate that statement. He says that the area adjacent to the kitchen sink and cupboard area is general circulation space rather than an area solely for use as kitchen. Mr McDonald disagrees and says that an area between 500 and 600 mm wide in front of those cupboards should be included in the calculation of the area of the kitchen and therefore deducted from the room sizes. For that reason he says the number of single and double rooms differs from that sought by the applicant. The applicant has conceded that two of the rooms do not satisfy the minimum standard for double rooms and accordingly seeks consent for 8 single and 24 double rooms with a maximum occupancy of 56 persons. Mr McDonald disagrees and says that in accordance with clause 29(2)(f), the consent should be limited to a maximum of 41 residents and one boarding house manager. 5. The Plan of Management, exhibit B, makes reference to the provision of laundry facilities and a waste disposal container however is silent on the kitchen facilities to be provided within the individual rooms. The applicant had however accepted draft condition 5A(i) which states: Each self-contained room be fitted out with washing up facilities, a cooktop, oven, fridge and storage space with such utilities being maintained in working order at all times. Parking 1. As the Council's traffic expert could not comment on the application of the SEPPARH and DCP provisions in determining how many parking spaces would need to be provided on site so that the terms of clause 29(2)(e) of SEPPARH could not be used as grounds to refuse consent, the planners assisted the Court in this matter however, neither party could advise whether the development consent is that applies to the existing commercial building on the site required the provision of any off street car parking. 2. At the site view, one parking space within a carport and one additional space on the overgrown rear yard area adjacent to that carport was observed. 3. It is common ground that the site is within an accessible area and therefore parking is required at the rate of at least 0.2 spaces per boarding room and not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site. It is agreed that for consent not to be refused, at least 6.4 parking spaces would be required. In addition, the provisions of clause 30(1)(h) state that a consent authority must not consent to development to which this Division applies unless it is satisfied of each of the following.....at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms. That requires the provision of 6.4 spaces for each. The amended plans make provision for the parking of five motor vehicles within the car stacker and one accessible car space and five motorcycles within the basement area. One space additional motor cycle space is provided adjacent to the four at grade commercial car parking spaces. 4. Prior to hearing submissions, Mr O'Gorman-Hughes for the applicant tendered a plan which clarified the area of commercial floor space. That plan shows an area of 88.38m² within the existing building and 45.12m² within the proposed development totalling 133.5 m². Mr Jackson for the council agreed that the four parking spaces proposed for commercial tenancies would satisfy the DCP parking requirements for the existing and proposed development Conclusion and findings 1. For consent to be granted I must take into consideration whether the design of the development is compatible with the character of the local area. Whilst a finding of incompatibility is not a bar to the grant of consent, it is an important consideration. 2. I accept the agreed position of the planning experts that the area is one which is on the cusp of undergoing significant change. Accordingly, the DCP must be the focal point of determining the DFC for the area. So too is the SP2 zoning of the land at the northern end of the site that provides for the future road widening of Georges River Road. 3. The DCP provisions for the B2 zone in this locality do have regard to the road widening. This is particularly evident from the Croydon Park structure plan. Figure 3.1.8 that shows the area to which the plan applies and delineates the area along which retail/commercial street activation is required. That area is along the northern extent of the B2 zone and is setback from the existing road boundary. It differs from the location of the activation zone within other town centres. In addition, the DCP specifically states at the first paragraph of Part 3 Business Zones that it applies to B1, B2, B5, B6 and only that SP2 zone within the Roselands car park and landscape area. Therefore, it has no application to the SP2 zone in the Croydon Park local centre. For that reason, I do not accept Mr O'Gorman-Hughes' submission that the existing site boundary is the front boundary that I should have regard to. I consider the front boundary of the site as defined in the DCP equates to the location where the B2 and SP2 zones meet as detailed in the structure plan. 4. For that reason, I consider that proposed development is inconsistent with the DFC that is sought for the Croydon Park local centre. I also do not consider that the controls that apply to the gateway site envisage a development of the form that is proposed. An important aspect of the controls seeks to provide for a base with activated retail and commercial levels and the upper levels setback. Whilst I agree that development on the site should not have setbacks to Brighton Avenue, the setback to Georges River Road is an essential element of the DFC and one that establishes the character of the local area. Failure to provide this upper level setback would result in a development that is not compatible with the character of the local area so well expressed in the council's DCP. 5. Consistent with the approach adopted in Project Venture compatibility with the future character is more appropriate than the existing and the planning controls envisage a change of character that provides for building setbacks at upper levels and active street frontages. 6. As the site is the only nominated gateway site in the Croydon Park town centre, I accept Mr McDonald's evidence that the street level activation as designed is unacceptable. The introduction of a doorway and lobby area in the Exhibit K plans does little to activate the Brighton Avenue façade and does not achieve the objectives of the control. 7. In relation to the issue of room sizes, I accept the council's contention that an inadequate area has been included for the calculation of the room sizes to determine occupancy. Whilst this in itself is not a reason to refuse consent, the occupancy would be that suggested by the council in its draft conditions as there is a need to ensure that rooms are functionally designed and capable of providing the necessary amenity to boarders. From the details provided on the plans, in the draft condition and within the POM I am not so satisfied that an area of 0.76m2 is sufficient to provide those facilities and also use them without affecting the use of the remainder of the rooms, particularly where 2 boarders would reside. 8. Car parking should comply with the provisions of SEPPARH and for that reason I consider the boarding house, with 32 rooms should provide at least 7 spaces (6.4 is the minimum standard applicable under the provisions of clause 29(2)(e)). The amended plans only provide for 6 spaces and therefore, the original stacker system should be incorporated and a total of 9 spaces provided for boarders. I acknowledge that the stacker may not accommodate 100 percent of vehicles however, as the type of vehicles likely to be owned by boarders could be smaller, cheaper vehicles that Land Cruisers and the allocation of spaces will be managed, I consider this to be more desirable than having less spaces than contemplated under SEPPARH. 9. Similarly, I consider that for affordable housing and achieving the objectives of the policy, a floor to ceiling height of 2.4m would be appropriate in the circumstances of the case. The provisions of SEPPARH must be given precedence to the DCP controls and despite the fact that the policy is silent on this issue I consider the aims are clear in facilitating the provision of affordable rental housing for workers close to places of work and providing incentives for additional floor space. I accept Mr Kennan's submission that the floor to ceiling height will comply with the BCA provisions, provide satisfactory amenity and reduce building costs so as to achieve that aim. It is a way of providing the additional floor space within a building envelope that is more consistent with the planning controls provided the design of individual room sizes provide for a functional space with good light, ventilation and amenity. 10. As detailed above, I consider the proposed access arrangement to be satisfactory provided it can be verified that all elements of the traffic management system can be synchronised to reduce delay times. Other matters of detail had been satisfactorily resolved through the provision of additional information. 11. The exceedance of the building height in the location of the lift well is acceptable in the circumstances of the case and is not a reason why consent cannot be granted, pursuant to the provisions of clause 29(4) of SEPPARH. 12. What had not been resolved by the end of the hearing is a set of plans that comply with the Court's Practice Note for Class 1 appeals. Schedule A to that Note lists the details that are required and include the fact that plans should be drawn with clarity, be consistent with each other, show areas and dimensions, wall construction, paved areas and materials and finishes to be used in construction. The plans before the Court do not satisfy these requirements and are not ones that could be approved in the form proposed. In addition, the conflicts between the plans and BASIX certificate are unsatisfactory. 13. For the above reasons and in accordance with the provisions of clause 30A of SEPPARH and the provisions of s79C of the Environmental Planning and Assessment Act 1979 I am not satisfied that the design of the proposed development is compatible with the character of the local area or that the relevant provisions of the DCP, particularly those that relate to building siting, setbacks and street activation are met. The design would have an adverse impact on the future natural and built environment as foreshadowed in the council's planning controls and is therefore not suitable for the site. 14. Accordingly, I find that the development is not one for which consent should be granted. 15. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA-602/2015 which seeks consent to demolish existing structures (retaining to the commercial shop) and construct a six story mixed use development comprising of one commercial tenancy and 32 boarding rooms at the corner of Georges River Road and Brighton Avenue, Croydon Park is refused consent. 3. The exhibits, other than exhibits A, K and 1, are returned. ______________________ Sue Morris 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: 20 September 2016