Land and Environment Court New South Wales Medium Neutral Citation: Revelop Projects Pty Ltd v City of Parramatta Council [2016] NSWLEC 1452 Hearing dates: 14 September 2016 Date of orders: 29 September 2016 Decision date: 29 September 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld – see [57] Catchwords: DEVELOPMENT APPLICATION: Boarding house; character; traffic and pedestrian safety Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 State Environmental Planning Policy (Affordable Rental Housing) 2009 The Hills Local Environmental Plan 2012 Category: Principal judgment Parties: Revelop Projects Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Applicant: Mr M Staunton (Barrister) Respondent: Mr K Webber (Solicitor) Solicitors: Applicant: Thomson Greer Respondent: Wiltshire Webb Staunton Beattie Lawyers File Number(s): 152510 of 2016 Judgment 1. COMMISSIONER: The applicant appeals the former Hills Shire Council's refusal of a development application to construct a boarding house and associated works at 8 Forsyth Place, Oatlands (the site). 2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. Since the commencement of the Class 1 appeal in November 2015, as a consequence of recent council amalgamations, the site has been incorporated into the City of Parramatta Council. Notwithstanding the amalgamations, the relevant controls are those of The Hills Shire Council. 4. The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). While issues were narrowed, there was no full agreement and the conciliation was terminated. With the agreement of the parties, this matter has proceeded to a hearing under s 34(4)(b)(ii), that is, on the basis of what occurred during the conciliation process. As a consequence of the conciliation, the applicant prepared amended plans. Leave was granted to rely on those plans. The parties agreed to costs pursuant to s 97B EPA Act. The site and its locality 1. Forsyth Place is a small street bounded to the South by Kissing Point Road and to the west by the Kissing Point Road exit onto James Ruse Drive. The carriageways of those major roads are elevated above Forsyth Place. Forsyth Place is a 'no through road', entry and exit is from Bettington Road to the east. 2. The northern side of Forsyth Place is characterised by residential allotments containing mostly single storey detached dwellings of varying ages and architectural styles with driveways to off-street parking. The dwellings are set back from the street and, given the fall of the land, below street level. The southern side of the street is the elevated and retained embankment of Kissing Point Road. There is no formal footpath on either side of the road. Pedestrian access is possible along an unformed grassed verge on the northern side of the street. On-street parking is possible on the northern side; there is no resident parking scheme in place. 3. At the eastern end of the road, at the Bettington Road intersection, is a roughly triangular landscaped area that forms the corner between Forsyth Place/ Bettington Road/ Kissing Point Road. It is mostly planted with Lomandra and small shrubs. There is a small section of formal footpath at the eastern end of this garden bed which provides access to pedestrian crossings across Bettington Road and Kissing Point Road. 4. The site is a vacant lot at the western end of Forsyth Place. It is legally described as Lot 1 DP 868487. 5. The site is an irregularly shaped allotment with an area of 1624m2. The adjoining properties to the east and north are residential allotments. The adjoining residential property to the east is heavily vegetated. The Kissing Point Road exit ramp is to the south and west of the site. The off-ramp is retained by a wall of up to 6.4m in height. 6. The south-western portion of the site is generally at street level. The site falls steeply by about 5m towards the northeast. The lowest part of the site may be flood-affected due to overland flow. 7. Traversing and constraining the site are two easements. A four metre wide easement benefitting NSW Roads and Maritime Services provides for access and maintenance along the James Ruse Drive retaining wall. The other is a one metre wide easement under which is the Hunter Pipeline; the pipeline carries refined petroleum products from the refinery at Kurnell to various terminals in Newcastle. This easement traverses the site in an irregular fashion from north to south. The proposal 1. The applicant proposes to construct a 22 room boarding house, including one manager's residence, a separate communal living/games room/ reading room, basement parking and landscaping. The application is made under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 2. The boarding house is proposed across 2 x 2 storey buildings/pavilions, one to the south and the other downslope to the north. Basement parking for 9 vehicles, 5 motorcycles, bicycles as well as storage spaces is proposed to be constructed beneath the southern building. 3. The southern building comprises 12 units across two levels; the rear/ northern building contains 10 units across two levels. The self-contained units provide potential accommodation for a maximum of 31 occupants. The buildings are separated by communal open space at constructed ground level, which is elevated above natural ground level. Three units on the lower ground floor of the northern building, one of which is the manager's residence, have north-facing areas of private open space. 4. The communal living/reading/games facilities are located in a free standing single storey building to the west. There is an attached waste storage room. The issues 1. The issues (in bold) raised by council in their Statement of Facts and Contentions dated 16 January 2016 go to: * Compatibility with the existing and desired future character of the area; * Impacts on adjoining properties – privacy; visual bulk and scale; * Street usage and safety – safe and separate pedestrian access; increased demand for on-street parking; traffic volume and safety; access for garbage trucks; and * Public interest – matters raised in submissions. Assessment framework 1. In the notice of determination, council's reasons for refusal cite non-compliance with cl. 30A SEPP ARH, one of the objectives of the aims of The Hills Local Environmental Plan 2012 (THLEP), and general provisions of s 79C(1)(a)(i),(b),(c),(d) and (e) of the EPA Act. 2. Clause 1.2 THLEP provides the aims of the Plan. Subclause 1.2(2) objective (c) states: (c) To provide for the development of communities that are liveable, vibrant and safe and that have services and facilities that meet their needs. 1. The site is zoned R2 – Low Density Residential Zone under THLEP. Boarding houses are permitted with consent. The relevant zone objectives are: * To provide for the housing needs of the community within a low density residential environment. * To maintain the existing low density residential character of the area. 1. THLEP cl. 4.3 sets the development standard for height of buildings. The objectives are to ensure that the height of buildings is compatible with that of adjoining development and the overall streetscape and to minimise the impact of overshadowing, visual impact, and loss of privacy on adjoining properties and open space areas. The Height of Buildings Map shoes a height of 9.0 metres. 2. The Floor space ratio development standard is set out in cl. 4.4. The relevant objective is to ensure that development is compatible with the bulk, scale and character of existing and future surrounding development. There is no specified FSR for the site. 3. The proposal relies on the application of SEPP ARH. Where development under SEPP ARH is proposed within the R2 zone, the land must be within an accessible area. Clause 4(1) defines accessible area a land that is (relevantly) within: (c) 400 metres walking distance of a bus stop used by a regular bus service…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. Walking distance is defined as the shortest distance between two points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings. 1. Clause 29 SEPP ARH lists the standards that cannot be used to refuse consent. Clause 30 sets the standards for boarding houses. Clause 30A – Character of local area is pressed. It states: 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. No parts of The Hills Development Control Plan 2012 (THDCP) are identified by council. The applicant maintains the proposal complies with the relevant parts of THDCP. The hearing and evidence Objectors 1. The site was inspected on 16 March 2016 as part of the s 34 conciliation process. A number of residents made oral submissions. Notes taken at the time, as well as written submissions from objectors, are included in council's bundle of evidence (Exhibit 1). 2. The issues raised are summarised as: * Increased traffic will be beyond the capacity of the road and pose a risk to the health and safety of adults and children who live in or visit Forsyth Place; * Traffic congestion and safety risks as vehicles exit onto or enter from Bettington Road; * Reduction in on-street parking; * Acoustic impacts from traffic and the proposed development; * Access for garbage truck – currently reverses down the street * Out of character with the type of residential development in the street; * Over-development of the site; * Risk of flooding; and * Risk posed by constructing in the vicinity of a known hazard – the high pressure pipeline beneath the site; lack of an appropriate risk assessment. Traffic and parking 1. Apart from the general concerns raised by the residents, the key issues relating to traffic and pedestrian safety are: * The traffic generation of the boarding house and the likely impact on residential amenity; and * The safety of pedestrians traversing Forsyth Place, particularly in the 10m approach to the intersection with Bettington Road. 1. At the time of the initial site inspection, the parties' traffic engineers considered the practicality of constructing a formal footpath either along the southern side of the road at the base of the retaining wall supporting Kissing Point Road, or on the grassed verge on the northern side of the street, for the full length of Forsyth Place. The provision of some pedestrian access at the eastern end of the road was also discussed. 2. The applicant's traffic expert, Mr Craig McLaren, prepared a report addressing those issues (Exhibit C). Mr McLaren applied the relevant standards and guidelines and determined that the proposal is likely to generate 7.25 vehicles in the peak hour based on a traffic generation of 0.33 trips per unit. When added to the estimated 12 vehicles at a rate of one per existing dwelling, the total is 19.25 vehicles in the peak hour or just under one vehicle every three minutes. This is likely to result in a negligible risk of queuing into the Bettington Road/ Kissing Point Road intersection. 3. Similarly, using the guidelines and standards to estimate pedestrian movements, based on a peak hour rate of 0.47 pedestrian movements per existing dwelling, and a rate of 0.55 for the boarding house, the total number of pedestrian movements in peak hour is estimated as 17.7. 4. In carrying out a detailed risk analysis of pedestrian/ vehicle collisions along the length of Forsyth Place, Mr McLaren states: While the risk of pedestrian/ vehicle collisions remains low for traffic approaching the Forsyth Place/ Bettington Road intersection from the west, the proximity of the intersection to the Bettington Road/ Kissing Point Road intersection requires drivers entering Forsyth Place to concentrate on the movements of other vehicles, elevating the chance that a pedestrian on the 20m approach to the intersection could go unnoticed and raising the risk of a pedestrian/ vehicle collision. 1. Further along the street, away from the intersection, Mr McLaren considers the risk of a collision to be low as the sight lines are good and the grass verge provides opportunities to 'escape' if people are walking on the road. 2. However, in acknowledging the higher risk close to the intersection, Mr McLaren makes the following recommendation and conclusion: It is recommended that a pedestrian path be constructed to facilitate the circumvention of this 20m length of Forsyth Place and providing a safe and convenient connection for pedestrians to access the existing footpath at the Bettington Road/ Kissing Point Road intersection. A concept of the pedestrian footpath is shown at Annexure C. Considering the low risk to pedestrians travelling along the length of Forsyth Place even with the addition of the footpath and vehicular traffic of the proposed boarding house, no treatment (i.e. footpath) is required beyond the 20m intersection-affected length. 1. Mr Stephen Barnes, council's roads and traffic expert prepared a statement of evidence (Exhibit2) in which he concurs with Mr McLarens' methodology and results. He states: In essence the low traffic volume and speed profile of vehicles using Forsyth Place does not impose an unacceptable risk to pedestrians utilising the road carriageway for pedestrian access. A 20m section of concrete footpath as shown in Annexure C in the McLaren report should however be provided to further improve safety for pedestrians accessing the signalised intersection of Bettington Road/ Kissing Point Road. 1. Notwithstanding the agreement of the parties' traffic experts, the council's planner, Mr Henry Burnett, considers pedestrian access to be both a planning and a traffic issue. In his opinion, the proposal does not satisfy cl. 27(2) of SEPP ARH as the walking distance from the boarding house to public transport is not provided on a footpath. Mr Burnett maintains that the grassed verge, which tends to slope away from the edge of the road, is difficult to negotiate and therefore does not meet the level of safety provided in the definition of walking distance in the SEPP. 2. Under cross-examination, Mr Burnett accepted he is not a traffic engineer. In oral evidence, Mr McLaren stated that constructing a formal footpath on the northern side of the road would be difficult because it would adversely affect the levels of the existing driveways. He reiterated the low risk associated with the majority of the 130 m long road, and the agreed provision of a footpath along the last 20m section. Planning 1. The parties' planners, Mr Adam Byrnes for the applicant and Mr Burnett for the council, prepared individual expert reports. Mr Byrnes prepared the applicant's Statement of Environmental Effects (Exhibit D). 2. In his report (Exhibit 3), Mr Burnett considers that the eastern elevation of the proposed development, because of its bulk and scale, will result in an unsatisfactory visual impact when viewed from the adjoining property to the east; that impact would be exacerbated if the vegetation along the western boundary of that property were to be removed or the site redeveloped. In this regard, Mr Burnett is of the view that the proposed development is incompatible with the local character. 3. In oral evidence Mr Burnett agreed with Mr Webber that requiring vegetation taller than the species indicated on the landscape plans along the eastern boundary and increasing the container size would address some of his concerns about the visual impact of the eastern elevation. The applicant accepts this proposition. However under cross-examination by Mr Staunton, Mr Burnett agreed that while the proposal is permitted as are other forms of development that may have closer setbacks, and that the proposal complies with or exceeds all of the relevant numerical controls, he maintained his opinion that the proposal is out of character because a resident on the adjoining property could not anticipate what is proposed. 4. Mr Byrnes in his report (Exhibit B) notes that following the conciliation, the applicant prepared amended plans that incorporate a number of design changes suggested by Mr Burnett. These include rear and side privacy screens to limit overlooking of adjoining properties, rear separation of the main building into two pavilions to reduce the overall bulk of the building, adjustments to accommodate the pipeline, a new bin storage area and a revised schedule of finishes including a variation in brick tones and mix of materials. 5. In relation to the eastern façade, Mr Byrnes considers it to be articulated in form with no wall length greater than 11.4m, with other lengths no greater than 4.82m without a break or recess. The façade is articulated horizontally and well as vertically. Mr Byrnes states that the eastern side setback varies from 1500-2500mm; the minimum side setback for a dwelling specified in THDCP is 900-1500mm. The side setback provides sufficient space for the establishment of vegetation on the site, irrespective of what may or may not happen on the adjoining property. 6. Concerning character, Mr Brynes states that the proposal complies with the height and FSR development standards in THLEP and THDCP controls for number of storeys, and more than complies with the controls for side setbacks, landscaped area and deep soil planting, and site coverage. In his opinion, the proposal adopts the architectural features of residential dwellings that exist and continue to be built in the locality including pitched roof, face brick, articulated form and landscaped gardens. Mr Brynes if firmly of the opinion that the form, location and scale of the proposal is consistent with the character of the area. Submissions 1. Mr Webber for the council notes Mr Burnett's opinion and the applicant's agreement to amend the landscaping plans to incorporate taller plants for screening purposes with some taller trees interspersed in order to further mitigate the visual bulk of the eastern façade. 2. Mr Staunton for the applicant submits that Mr Burnett's evidence should be rejected because unlike Mr Byrnes or Mr McLaren, he has failed to identify the facts and assumptions upon which he has based his opinion; that is, he has not complied with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. 3. Mr Staunton presses the complete compliance with, or exceedence of, all relevant controls and notes that s 79C(3A)(a) of the EPA Act prevents a consent authority from imposing more onerous standards than the standards prescribed in a DCP. In regards to the eastern façade, he reiterates Mr Byrnes' evidence and the plans that demonstrate the substantial separation between the buildings, the incorporation of privacy screens, the extent of articulation, and the more than adequate side setback. While Mr Staunton contends that the applicant does not need to augment the landscaping on the eastern boundary, the applicant has agreed to do so. 4. In regards to pedestrian safety and traffic Mr Staunton relies on the uncontested evidence of Mr McLaren that what is proposed will be safe for both vehicles and pedestrians. Further he also notes that the definition of 'walking distance' in SEPP ARH uses the words 'as far as reasonably practicable' in regards to the use and therefore provision of footpaths. Mr Staunton presses the agreement of the traffic engineers during the site inspection, confirmed by Mr McLaren, that the provision of a formal footpath along the northern or southern side of Forsyth Place is not reasonably practicable. Findings 1. I am required by s 79C to consider a number of relevant matters. 2. I am satisfied on the basis of the plans, Mr Byrnes' evidence, and with the benefit of the site inspection, that the design of the proposed development is compatible with the character of the local area and cl.30A SEPP ARH is met. The detailed compliance table in the Statement of Environmental Effects demonstrates that the proposal meets all of the standards listed in cl. 29 and cl.30 and thus consent cannot be refused on the basis of any of those standards. While there is no prescribed FSR for the site in THLEP, THDCP requires an FSR of 0.5:1 for dual occupancy; this is the only form of residential development for which FSR is prescribed. The proposed FSR is 0.46:1. The setbacks, roof form, architectural style, and materials are consistent with nearby residential development. I am satisfied that the proposal meets the relevant zone objectives by providing for the housing needs of the community and, by achieving compliance with council's controls for the R2 zone, maintaining the existing low density residential character of the area. 3. In regards to council's second contention that there are unacceptable impacts on adjoining properties, I prefer Mr Brynes' opinion over that of Mr Burnett. Privacy screens have been included in the amended plans; these have a secondary role in breaking up the facades and introducing another material. Given the degree of articulation, the more than compliant eastern side setback, the agreement to include taller plants in that setback, the separation between the buildings, the elevated landscaped area of communal open space between the buildings, the compliant height, and the stepping down of the building towards the rear boundary, there seems little more the applicant could reasonably be expected to do in order to reduce the visual impact of that façade. Therefore I find that there are no unreasonably adverse impacts on the amenity of adjoining properties. 4. Similarly, I am satisfied on the basis of Mr McLaren's uncontested expert opinion that the proposed construction of a footpath at the western end of Forsyth Place achieves the requisite level of pedestrian safety and meets the description of 'walking distance' in SEPP ARH. I am also satisfied that the projected traffic volumes are unlikely to cause any significant safety issues. In this respect the proposal achieves objective 1.2(c) THLEP. 5. In considering submissions made by those who objected to the proposal concerning issues not already discussed, I make the following findings. 6. Hunter Pipeline Company has issued its Requirements for Third Party Activities; this document is attached to this judgment. Condition 8 requires compliance with this document. 7. While the site is partly flood-affected, the council has raised no concerns about the adequacy of the flood studies and stormwater management plans submitted by the applicant. A number of conditions of consent apply specifically to flooding issues. 8. Council has not raised any concerns with the proposed waste management plan, or any concerns arising from the current practice of the garbage truck reversing down the street. A separate waste storage area is to be constructed. Further information supplied to the council on 31 August 2015 indicates that a smaller vehicle operated by a private waste contractor could enter and exit the site in a forward direction. However I note that condition 15 requires the owner to arrange a domestic waste collection service with the council. 9. No specific issues have been raised about acoustic impacts from the development. The applicant has provided technical reports and the setbacks are compliant. The conditions of consent include conditions on noise generated during construction and noise arising from the proposal. The conditions require a Plan of Management and House Rules to be provided to all residents. The Plan of Management (Exhibit 8) and conditions 75 and 79 limit noise to surrounding areas and the use of outdoor and barbecue areas. I am satisfied that this issue has been adequately addressed. Conclusions and orders 1. Having considered the requisite matters under s 79C, the expert evidence, submissions made by the parties and the objectors, and with the benefit of the site inspection, I am satisfied that the proposal complies with the relevant provisions of SEPP ARH, THLEP, THDCP, will have no unreasonable or adverse impacts on neighbouring properties and is in the public interest. 2. Therefore the Orders of the Court are: 1. Leave is granted to rely upon the amended plans referred to in condition 1 of Annexure 'A' 2. Pursuant to s 97 B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent's costs thrown away in the sum of $1500 within 28 days of the date of these orders. 3. The appeal is upheld. 4. Development Application No. 1529/2015/HA for the construction of a 22 room boarding house and associated works under the provisions of State Environmental Planning Policy – Affordable Rental Housing 2009 at Lot 1 in DP 868487, known as 8 Forsyth Place, Oatlands is approved subject to the conditions of consent in Annexure 'A'. 5. Exhibits D and E are returned to the Class 1 application bundle. Exhibits A and 5 are retained; all other exhibits are returned. ___________________________ Judy Fakes Commissioner of the Court 152510.16 Annexure A conditions (333 KB, pdf) 152510.16 Plans (7.22 MB, pdf) 152510.16 Hunter Pipeline company requirements for third party activities 9.8.14 (46905499v2) (148 KB, pdf) ********** 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: 30 September 2016